The Tokyo Tribunal: Perspectives on Law, History and Memory
Edited by Viviane E. Dittrich, Kerstin von Lingen, Philipp Osten and Jolana Makraiová

The Tokyo Tribunal:
Perspectives on Law,
History and Memory
Viviane E. Dittrich, Kerstin von Lingen,
Philipp Osten and Jolana Makraiová(editors)

2020
Torkel Opsahl Academic EPublisher
BrusselsFront cover: The picture shows judges, interpreters and court-reporters of the International Military Tribunal for the Far East (IMTFE) in session, 26 November 1946,
former War Ministry Building in Tokyo. The picture is used here with the courtesy of
the National Archives and Records Administration at College Park, Maryland, USA(NARA, 238-FE-46-66422).

This and other publications in TOAEP’s Nuremberg Academy Series may be openly
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FOREWORD BY THE SERIES EDITORThe Nuremberg Academy Series seeks to cover relevant and topical areasin the field of international criminal law and includes work that is interdisciplinary or multidisciplinary bringing together academics and practitioners. Grounded in the legacy of the Nuremberg Principles – the foundation of contemporary international criminal law – it addresses persistentand pressing legal issues and explores the twenty-first century challenges
encountered in accountability for core international crimes. The Series
was established in April 2017 by the International Nuremberg Principles
Academy, in co-operation with the Centre for International Law Researchand Policy, to produce high-quality open access publications on international law published by the Torkel Opsahl Academic EPublisher(‘TOAEP’).
The first volume in the Series, Two Steps Forward, One Step Back:
The Deterrent Effect of International Criminal Tribunals, explored thedeterrent effect of international criminal tribunals, including case studies
on the deterrent effect in ten situations of four different international tribunals. The second volume, Islam and International Criminal Law andJustice, examined the universality of the Nuremberg Principles in a globalized world, concentrating in particular on Islamic perspectives and interrogating the relevancy and applicability of the Nuremberg Principles tonotions of justice in the Muslim world.
This book, the third volume in the Series, presents a contemporary
rereading of the Tokyo Tribunal, officially named the International Military Tribunal for the Far East (‘IMTFE’), combining perspectives fromlaw, history and the social sciences. The anthology offers a broad and rich
spectrum of views by leading scholars and experts on the historical, legal,
political and cultural significance of the trial that took place more than 70
years ago and remains of contemporary relevance today. The book thus
provides new insights to the extensive literature on the Tokyo Tribunal
that exists in both English and Japanese as the trial has received renewed
attention in recent years. The ongoing interpretation and evaluation of theTokyo Tribunal and contemporary war crimes trials and the duality of Tokyo and Nuremberg are cross-cutting concerns for the volume as a whole.
iThe idea of the volume is based on an international conference organized by the International Nuremberg Principles Academy in Nuremberg marking the seventieth anniversary of the judgment of the IMTFE in2018. The publication of this original, multidisciplinary collection of essays on the Tokyo Tribunal in the Nuremberg Academy Series is topicaland timely given the seventy-fifth anniversary of the end of the Second
World War in 2020. It is hoped that, as an open-access publication, thisvolume will be widely read by scholars, students and practitioners, including in Asia, as a contribution to the contemporary debates on law, history
and memory.
The International Nuremberg Principles Academy takes this opportunity to thank the co-editors, the contributors and TOAEP for their productive collaboration and dedication in finalizing this volume.
Viviane E. Dittrich
Nuremberg Academy Series Editor
Deputy Director, International Nuremberg Principles Academyii

PREFACE BY THE EDITORS
We would like to acknowledge the contributions and support of many experts and colleagues, without which this book would not have been possible. First and foremost, special thanks go to our colleagues and co-editors,
for their commitment, expertise, collegial support and tireless efforts inbringing this publication to fruition.
The conference, which has been the foundation of this book, wasmade possible by the International Nuremberg Principles Academy and its
dedicated staff and fully supported by its Director, Klaus Rackwitz. We
gratefully acknowledge that the Foundation Board and Advisory Councilof the International Nuremberg Principles Academy lend their full support
to this project.
Most importantly, we would like to thank all the participants in theconference as well as all the authors and contributors to this volume forthe inspiration and dedication to the book’s subject and the developmentof international criminal law in general. It remains refreshing to see all theadvancements in the field of international criminal law and in the study oftribunals and trials in law, history and the social sciences in a time of demanding challenges in the world. We are pleased that more and more
knowledge and understanding on such a crucial subject is emerging given
ongoing and contemporary debates over law and justice, as well as history
and meaning.
Many thanks to the Torkel Opsahl Academic EPublisher (‘TOAEP’)for providing a publishing platform for this volume in the Nuremberg
Academy Series. On a technical note, for the sake of consistency, TOAEP
has adopted the Revised Hepburn regime for romanizing Japanesethroughout, as a mainstream standard. Japanese names appear in the samestyle as Western names, that is, first name followed by surname.
Viviane E. Dittrich, Kerstin von Lingen,
Philipp Osten and Jolana Makraiová
Nuremberg, Vienna and Tokyo, May 2020

iii

TABLE OF CONTENTS
Foreword by the Series Editor .......................................................................... i
Preface by the Editors .................................................................................... iii
List of Contributors ...................................................................................... xiii
List of Abbreviations ...................................................................................... xix
PART I: INTRODUCTIONS
1.

Towards a Fuller Appreciation of the Tokyo Tribunal ............................. 1
By Viviane E. Dittrich and Jolana Makraiová
1.1.
1.2.
1.3.

2.

Context of the Book...................................................................... 1
Origins and Purpose of the Book .................................................. 5
Structure of the Book.................................................................... 7

Opening Reflections: Tokyoberg ........................................................... 17
By Gerry Simpson
2.1.
2.2.
2.3.
2.4.

Introduction ................................................................................ 17
Reorienting the Field .................................................................. 19
Coming in from the Margins of History ..................................... 23
The Hidden Trials ....................................................................... 26
PART II: FOUNDATIONS AND FACETS OF THE TRIAL

3.

The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Study ............................................................................. 31
By David M. Crowe
3.1.
3.2.

3.3.

Introduction ................................................................................ 31
Background ................................................................................ 32
3.2.1. The Tokyo Trial ............................................................. 32
3.2.2. The Nuremberg Trial ..................................................... 35
3.2.3. The London Conference ................................................ 38
Proceedings ................................................................................ 42
3.3.1. The Nuremberg Trial ..................................................... 42
v

3.4.
4.

The Tokyo Tribunal: A Transcultural Endeavour ................................... 61
By Kerstin von Lingen
4.1.
4.2.
4.3.
4.4.
4.5.
4.6.
4.7.

5.

5.4.
5.5.

Introduction ................................................................................ 85
Accounting for Legal Scholars’ Relative Neglect ...................... 86
An Echo of Nuremberg and an American Show......................... 88
5.3.1. Early Planning for Post-war Prosecutions ..................... 88
5.3.2. American Leadership in London and Dominationin Tokyo ......................................................................... 90
5.3.3. Legal Frameworks: Derivation and Difference ............. 92
Reconsidering Tokyo’s Legal Legacy......................................... 96
Conclusion ................................................................................ 101

Glimpses of Women at the Tokyo Tribunal ......................................... 103
By Diane Marie Amann
6.1.
6.2.
6.3.
6.4.

vi

Introduction ................................................................................ 61
Selecting Judges ......................................................................... 64
Colonial Endeavours................................................................... 68
Structural Difficulties ................................................................. 71
Team Spirit ................................................................................. 74
Fields of Friction ........................................................................ 77
Conclusion .................................................................................. 83

The Tokyo Tribunal’s Legal Origins and Contributions toInternational Jurisprudence as Illustrated by Its Treatment of
Sexual Violence ..................................................................................... 85
By Diane Orentlicher
5.1.
5.2.
5.3.

6.

3.3.2. The Tokyo Trial ............................................................. 45
Conclusion .................................................................................. 58

Introduction .............................................................................. 103
A Tribunal in the Shadows........................................................ 105
Amid New Visibility, Women’s Muted Roles ........................... 110
Figuring Women into Tokyo Trial Narratives ........................... 113
6.4.1. Elaine B. Fischel .......................................................... 116
6.4.2. Grace Kanode Llewellyn ............................................. 119
6.4.3. Virginia Bowman and Lucille Brunner ........................ 121
6.4.4. Bettie Renner ............................................................... 121
6.4.5. Eleanor Jackson ........................................................... 122
6.4.6. Coomee Strooker-Dantra ............................................. 123
6.4.7. Helen Grigware Lambert ............................................. 125

6.5.
7.

Conclusion ................................................................................ 127

Trial and Error in the Interpreting System and Procedures at theTokyo Trial........................................................................................... 131
By Kayoko Takeda
7.1.
7.2.

7.3.

7.4.

7.5.

Introduction .............................................................................. 131
Lessons from Class B/C Trials: Three-Tier Interpreting
System ...................................................................................... 133
7.2.1. Use of Local Translators and Interpreters During
the Preparation Stage ................................................... 133
7.2.2. Learning from Failures at Class B/C Trials ................. 134
7.2.3. Japanese Interpreters Working for the Former
Enemies ....................................................................... 136
7.2.4. Checking Mechanism .................................................. 137
7.2.5. Monitors and Language Arbitration Board .................. 138
Improvising Procedural Rules on Interpreting ......................... 140
7.3.1. Untrained Interpreters and Inexperienced Users ofTheir Services .............................................................. 140
7.3.2. Court Expectations vs. Interpreter Limitations ............ 140
7.3.3. Relay Interpreting ........................................................ 144
7.3.4. Belated Inquiry to Nuremberg ..................................... 144
7.3.5. Use of a Third Language by Prosecutors ..................... 145
7.3.6. Educating the Users of Interpreting Services .............. 146
Tokyo, Nuremberg and Beyond ................................................ 147
7.4.1. Connection to Nuremberg? .......................................... 147
7.4.2. Relevance to Present-Day International Criminal
Justice .......................................................................... 149
Conclusion ................................................................................ 151
PART III: DYNAMICS AND DIMENSIONS OF THE TRIAL

8.

Individual Responsibility at the Tokyo Trial........................................ 155
By Yuma Totani
8.1.
8.2.
8.3.
8.4.
8.5.
8.6.

Introduction .............................................................................. 155
The Accused ............................................................................. 157
The System of Japanese Government ....................................... 161
Individual Responsibility for War Crimes ................................ 165
The Case of Shigemitsu ............................................................ 170
Conclusion ................................................................................ 174

vii

9.

‘Conventional War Crimes’: The International Military Tribunal
for the Far East and the Ill-Treatment of Prisoners of War andCivilian Internees ................................................................................. 177
By Robert Cribb
9.1.
9.2.
9.3.
9.4.
9.5.
9.6.

Introduction .............................................................................. 177
Indictment ................................................................................. 180
Proceedings ............................................................................... 187
Defence ..................................................................................... 194
Judgment................................................................................... 197
Conclusion ................................................................................ 198

10. Nuremberg, Tokyo and the Crime of Aggression: An Intertwined
and Still Unfolding Legacy .................................................................. 201
By Donald M. Ferencz
10.1. Introduction .............................................................................. 201
10.2. Early Perceptions of the Trials .................................................. 202
10.3. The Ex Post Facto Issue: The IMT Makes Its Peace with
Crimes Against Peace ............................................................... 206
10.4. The IMTFE Plays ‘Follow the Leader’ .................................... 209
10.5. The Ex Post Facto Issue: Not All Are Convinced, Nor
Should They Be ........................................................................ 210
10.6. Jackson at the IMT: The Push for Accountability..................... 212
10.7. Post-Nuremberg: Optimism, Expectation and Ambivalence .... 213
10.8. The ICC Finally Takes the Baton, a Slippery One.................... 215
10.9. Final Observations .................................................................... 218
11. Substantive Law Issues in the Tokyo Judgment:
From Facts to Law? ............................................................................. 223
By Marina Aksenova
11.1.
11.2.
11.3.
11.4.
11.5.
11.6.

Introduction .............................................................................. 223
Conspiracy ................................................................................ 228
The Crime of Aggression .......................................................... 231
War Crimes ............................................................................... 237
Superior Responsibility ............................................................ 242
Conclusion ................................................................................ 248

12. The “President’s Judgment” and Its Significance for the
Tokyo Trial ........................................................................................... 251
By David Cohen
12.1. Introduction .............................................................................. 251
viii

12.2. Webb on Crimes Against Peace and Aggression ...................... 254
12.3. Webb’s Individual Factual Findings and Verdicts on
Crimes Against Peace: Case Studies ........................................ 259
12.3.1. The Case of Hata ......................................................... 259
12.3.2. The Case of Hiranuma ................................................. 261
12.3.3. The Case of Hirota ....................................................... 263
12.3.4. The Case of Kimura ..................................................... 267
12.3.5. The Case of Shigemitsu ............................................... 269
12.3.6. The Case of Shimada ................................................... 271
12.4. Conclusion ................................................................................ 272
13. Constructing the Historical Legacy of the International Military
Tribunal for the Far East: Reassessing Perceptions of President
William Webb ...................................................................................... 275
By Narrelle Morris
13.1.
13.2.
13.3.
13.4.
13.5.
13.6.
13.7.

Introduction .............................................................................. 275
Shaping Perceptions of the IMTFE .......................................... 278
Contradictory Views of President William Webb ..................... 280
Webb and the Role of the President .......................................... 283
Private Criticism of Webb by the Judges .................................. 285
The Emergence of Public Criticism of Webb ........................... 287
Conclusion ................................................................................ 298

PART IV: RECEPTIONS AND REPERCUSSIONS OF THE TRIAL
14. ‘Substantial Criminal Character’ or ‘Lawless Violence’:
Crimes in the Charter of the Tokyo Tribunal and Their Receptions
in Contemporary Japanese Legal Scholarship ..................................... 303
By Philipp Osten
14.1. Introduction .............................................................................. 303
14.2. Crimes in the Tokyo Charter: Definitions, Modifications,
Counts and Judgment ............................................................... 305
14.2.1. Crimes Against Peace .................................................. 305
14.2.2. Crimes Against Humanity............................................ 308
14.2.3. Conventional War Crimes ............................................ 310
14.3. The Contemporary Scholarly Debate on the Concept of
Crimes .......................................................................................311
14.3.1. Criminal Law Scholars ................................................ 312
14.3.2. Public International Law Scholars ............................... 320
14.4. Outlook: Further Developments in the Japanese Scholarly
Debate ....................................................................................... 324
ix

15. Remembering the Tokyo Trial, Then and Now: The JapaneseDomestic Context of the International Military Tribunal for the
Far East ................................................................................................ 329
By Beatrice Trefalt
15.1.
15.2.
15.3.
15.4.
15.5.

Introduction .............................................................................. 329
The Tokyo Trial and the Allied Occupation of Japan ............... 330
Tokyo Trial vs. Other War Crimes Trials .................................. 340
Legacies .................................................................................... 344
Conclusion ................................................................................ 346

16. Clemency for War Criminals Convicted in the Tokyo Trials ............... 349
By Sandra Wilson
16.1.
16.2.
16.3.
16.4.
16.5.

Introduction .............................................................................. 349
Clemency for Japanese War Criminals Before 1952 ................ 352
War Criminals and the San Francisco Peace Treaty ................. 355
Negotiations over the IMTFE Prisoners ................................... 358
Conclusion ................................................................................ 368

17. Spaces of Punishment .......................................................................... 369
By Franziska Seraphim
17.1.
17.2.
17.3.
17.4.

Introduction .............................................................................. 369
How to Punish War Criminals .................................................. 375
Sorting Out Suspected War Criminals ...................................... 380
Carceral Systems ...................................................................... 386

18. The International Criminal Court and the International Military
Tribunal for the Far East: Lessons Learnt or Not? ............................... 399
By Kuniko Ozaki
18.1. Introduction .............................................................................. 399
18.2. Origins and Jurisdiction of the International Criminal
Tribunals ................................................................................... 400
18.3. Procedural Law ......................................................................... 403
18.4. Substantive Law ....................................................................... 411
18.4.1. Individual Criminal Responsibility .............................. 411
18.4.2. Command Responsibility ............................................. 418
18.5. Conclusion ................................................................................ 421

xPART V: CONCLUSION
19. Concluding Reflections: Nuremberg and Tokyo – Twin Tribunals,
Far Apart? ............................................................................................ 427
By Christoph Safferling
19.1.
19.2.
19.3.
19.4.
19.5.

Introduction .............................................................................. 427
The German-Japanese Criminal Law Dialogue........................ 429
The German-Japanese Scientific Discourse ............................. 431
Post-Second World War Developments .................................... 431
Conclusion ................................................................................ 432

Annex: Tokyo Charter ................................................................................. 435
Index ............................................................................................................ 443
TOAEP Team ............................................................................................... 451
Other Volumes in the Nuremberg Academy Series ...................................... 453

xi

LIST OF CONTRIBUTORSMarina Aksenova is a lawyer specializing in international criminal andcomparative criminal law. Ms. Aksenova graduated with honours from theInternational University in Moscow. She holds an LL.M. in Public International Law from the University of Amsterdam and an M.Sc. in Criminal
Justice and Criminology from the University of Oxford. Dr. Aksenova
defended her Ph.D. entitled “Complicity in International Criminal Law”
in 2014 at the European University Institute, in Florence. Prior to joining
the IE Law School, she was as a postdoctoral research fellow at the Centreof Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen.
Diane Marie Amann is Emily & Ernest Woodruff Chair in InternationalLaw, and Faculty Co-Director of the Dean Rusk International Law Center,
University of Georgia School of Law, Athens, Georgia, USA. Amann’s
many publications include several essays on women as creators and shapers of law, peace and security; especially, of international criminal justice.
She is writing a book on the roles that a multinational cohort of women
played – as lawyers and legal aides, journalists and artists, interpreters andtranslators – during the post-World War II trials at Nuremberg.
David Cohen is the Director of the Center for Human Rights and International Justice and WSD Handa Professor in Human Rights and International Justice at Stanford University. He is a leading expert in the fields ofhuman rights, international law and transitional justice. Professor Cohentaught at UC Berkeley from 1979-2012 as the Ancker Distinguished Professor for the Humanities, and served as the founding Director of theBerkeley War Crimes Studies Center. His involvement in research in war
crimes tribunals began in the mid-1990s with a project to collect the records of the national war crimes programmes conducted in approximately
20 countries in Europe and Asia after World War II.
Robert Cribb is Professor in the Department of Political and Social
Change, Coral Bell School of Asia-Pacific Affairs at the Australian National University. He is an historian of modern Indonesia, but with wider
interests in other parts of Asia. He completed his B.A. at the University ofxiii

Queensland and his Ph.D. at the School of Oriental and African Studies in
London. He has held positions at Griffith University, the Netherlands Institute of Advanced Study, the University of Queensland and the Nordic
Institute of Asian Studies. His research focusses on national identity, mass
violence, environmental politics, and historical geography.
David M. Crowe is a Presidential Fellow at Chapman University andProfessor Emeritus of History and Law at Elon University. His most recent publications include Stalin’s Soviet Justice: ‘Show’ Trials, War
Crimes Trials, and Nuremberg (2019), “The German Plunder and Theft ofJewish Property in the General Government”, in Nazi Law: From Nuremberg to Nuremberg (2019), “Pearl Buck, Raphael Lemkin, and the Struggle for the Genocide Convention”, in Beyond ‘The Good Earth’: Transnational Perspectives on Pearl S. Buck (2019), and “MacArthur, Keenan,
and the American Quest for Justice at IMFTE”, in Transcultural Justice:
The Tokyo IMT Trial and the Allied Struggle for Justice (2018). He is currently writing Raphael Lemkin: The Life of a Visionary.
Viviane E. Dittrich is Deputy Director of the International Nuremberg
Principles Academy. She is also Visiting Fellow at the Centre for International Studies, London School of Economics and Political Science(‘LSE’). Previously, she has been Honorary Research Associate at Royal
Holloway, University of London, and Visiting Researcher at iCourts (Centre of Excellence for International Courts), University of Copenhagen.
She has published on the notion of legacy and the process of legacy building at the international criminal tribunals and has taught on international
institutions, the politics of international law, global crime, and US foreign
policy at the LSE, Royal Holloway, and Sciences Po Paris.
Donald M. Ferencz is Visiting Professor at Middlesex University Schoolof Law and the Convenor of the Global Institute for the Prevention of Aggression. He served as an NGO advisor to the Special Working Group on
the Crime of Aggression, charged with developing amendments to theRome Statute of the International Criminal Court (‘ICC’), defining thecrime of aggression and setting forth the circumstances under which the
ICC may exercise its aggression jurisdiction. His work in the field of international justice focuses primarily on strengthening the rule of law
through universalization of the core crimes of the ICC.
Kerstin von Lingen is Professor in the Institute for Contemporary History at the University of Vienna. From 2013 to 2017, she led an independentxiv

research group at Heidelberg University in the Cluster of Excellence,“Asia and Europe in a Global Context” entitled, “Transcultural Justice:
Legal Flows and the Emergence of International Justice within the East
Asian War Crimes Trials, 1946-1954”, supervising four doctoral dissertations on the Soviet, Chinese, Dutch and French war crimes trial policies in
Asia, respectively.
Jolana Makraiová is Senior Officer for Interdisciplinary Research at theInternational Nuremberg Principles Academy. She is an international lawyer with extensive experience working at international tribunals, including
the International Criminal Tribunal for the former Yugoslavia and theSpecial Tribunal for Lebanon. Her expertise encompasses international
criminal, international humanitarian and human rights law.
Narrelle Morris is a Senior Lecturer in the Curtin Law School, Curtin
University, Western Australia. She is the Principal Legal Researcher on
the Australia Research Council (‘ARC’)-funded project “Australia’s PostWorld War II War Crimes Trials of the Japanese: A Systematic and Comprehensive Law Reports Series”. She also held an ARC grant for 2014–2019 to research the Australian war crimes investigator and jurist Sir William Flood Webb.
Diane Orentlicher is Professor of Law at the Washington College of Law
of American University. Professor Orentlicher, the author of Some Kind of
Justice: The ICTY’s Impact in Bosnia and Serbia (Oxford University Press,
2018), has published and lectured extensively in the fields of international
criminal law and transitional justice. As the United Nations Independent
Expert on combating impunity, she updated the UN Set of principles forthe protection and promotion of human rights through action to combat
impunity (E/CN.4/2005/102/Add.1). Professor Orentlicher served as Deputy for War Crimes Issues in the US Department of State from 2009
through 2011.
Philipp Osten is Professor of Criminal Law and International Criminal
Law at Keio University, in Tokyo, Japan. Philipp Osten’s main field of
research is international criminal law. He has conducted research on thehistory of international criminal trials and published a book on the Tokyo
Tribunal, Der Tokioter Kriegsverbrecherprozeß und die japanische
Rechtswissenschaft (Berliner Wissenschafts-Verlag, Berlin, 2003; Japanese translation by the author forthcoming). His recent research focuseson the ICC and he has published widely on issues pertaining to generalxvprinciples of criminal law in the Rome Statute, and its domestic implementation in Japan, Germany and other countries.
Kuniko Ozaki is a former Judge at the International Criminal Court(‘ICC’). Prior to joining the ICC, she served as Director for Treaty Affairs
for the United Nations Office on Drugs and Crime and worked in a number of positions for the Japanese government, including as Ambassador
and Special Assistant to the Foreign Ministry, Director for Human Rights
and Humanitarian Affairs in the Foreign Ministry, Director for Refugees
in the Justice Ministry, and Specialist to the Criminal Affairs Bureau of
the Justice Ministry. She has written extensively on international criminal
law, refugee law and law of human rights.
Christoph Safferling is Professor of Criminal Law, Criminal Procedure
Law, International Criminal Law and Public International Law at theFriedrich-Alexander University Erlangen-Nürnberg, Germany, where heis also the Director of the Research Unit International Criminal Law. His
main fields of research are contemporary legal history, international criminal law, and the subjective elements of the crime. He has published several articles and books in criminal law, international law, and humanrights law, inter alia, International Criminal Procedure (Oxford University Press, 2012) and co-edited the book The Nuremberg Trials: International Criminal Law since 1945 (De Gruyter Saur, Berlin, 2006), together
with Herbert R. Reginbogin.
Franziska Seraphim is a historian of modern and contemporary Japanand the Director of the Asian Studies Program at Boston College. Her
work has focused on the contested place of Japan’s empire and war in
Asia in post-war politics, society and culture. She is currently writing asocial history of the Allied transitional justice programme after World War
II from a global and comparative perspective. Titled Geographies of Justice, it relates the different spatialities of the programme and its transformation through the 1940s and 1950s through the lens of Japanese andGerman war criminals’ prisons, from their vast spread across Asia andEurope to the dynamics within the American-run prisons in Sugamo, Tokyo and Landsberg, Bavaria, and the (inter)national politics of clemency.
Gerry Simpson is Professor of International Law at the London Schoolof Economics and Political Science (‘LSE’) and a Fellow of the British
Academy. He previously taught at the University of Melbourne (20072015), the Australian National University (1995-1998) and LSE (2000xvi

2007), and has held visiting positions at ANU, Melbourne, New York
University and Harvard. He is the author of Great Powers and Outlaw
States (Cambridge University Press, 2004, winner of the American Society of International Law Annual Prize for Creative Scholarship in 2005),
and Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity, 2007).
Kayoko Takeda is Professor of Translation and Interpreting Studies at
Rikkyo University in Tokyo, Japan. Her main research interests lie intranslation and interpreting in war, the history of interpreting and interpreter education. She is the author of Interpreting the Tokyo War Crimes
Trial and a co-editor of New Insights in the History of Interpreting.
Yuma Totani is Professor of Modern Japanese History at the Universityof Hawaii and Visiting Fellow at the Hoover Institution, Stanford University. She specializes in the studies of post-World War II Allied war crimes
trials in the Asia-Pacific region and especially the Tokyo Trial.
Beatrice Trefalt is Associate Professor of Japanese Studies in the Schoolof Languages, Cultures, Literatures and Linguistics at Monash University,
Australia. She is co-author, with Sandra Wilson, Robert Cribb and Dean
Aszkielowicz, of Japanese War Criminals: The Politics of Justice Afterthe Second World War (Columbia University Press, 2017). She has published articles and chapters on war crimes trials, as well as on broader war
legacies in Japan and the region. Her latest publication is “The Battle of
Saipan in Japanese Civilian Memoirs: Non-combatants, Soldiers and theComplexities of Surrender”, in Journal of Pacific History, 2018, vol. 53,
no. 3, pp. 252-67.
Sandra Wilson is a historian of modern Japan. She is Professor and Academic Chair of History, and a Fellow of the Asia Research Centre, atMurdoch University, Western Australia. She is the author of The Manchurian Crisis and Japanese Society, 1931-33 (Routledge, 2002) and, with
Robert Cribb, Beatrice Trefalt and Dean Aszkielowicz, of Japanese War
Criminals: The Politics of Justice After the Second World War (Columbia
University Press, 2017). She also publishes on Japanese nationalism andcontinues to research Japanese war crimes.

xvii

LIST OF ABBREVIATIONSCIACentral Intelligence Agency

ICC

International Criminal Court

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the former Yugoslavia

ILC

International Law Commission

IMT

International Military Tribunal

IMTFE

International Military Tribunal for the Far East

JCE

joint criminal enterpriseNOPAR

National Offenders Prevention and Rehabilitation Commission

POWs

prisoners of war

PRC

People’s Republic of China

SCAP

Supreme Commander for the Allied Powers

SEP

Surrendered Enemy Personnel

SWNCC

State-War-Navy Coordinating Committee

UK

United Kingdom

UN

United Nations

UNWCC

United Nations War Crimes Commission

US

United StatesxixPART I:
INTRODUCTIONS

1______
Towards a Fuller Appreciation of
the Tokyo Tribunal
Viviane E. Dittrich and Jolana Makraiová*
1.1. Context of the Book
Accountability efforts and international criminal trials are a pervasive feature of peace and justice debates today as turning to law in response tointernational crimes has become more ubiquitous and commonplace.
These efforts redirect attention to the experiences and the lasting significance of past international tribunals. Among them are the contemporaneous legal proceedings of the International Military Tribunal (‘IMT’) in
Nuremberg and the International Military Tribunal for the Far East(‘IMTFE’) in Tokyo, which the Allied powers established as a response to
the mass atrocities committed during the Second World War. Both historic
trials laid an invaluable foundation for the edifice of modern international
criminal law.
The holding of the trial in Tokyo, in particular, was a remarkable international undertaking at the time, despite numerous obstacles, shortcomings and criticisms by contemporaries and present-day scholars and observers. Since then, numerous aspects of the trial have been debated and*Viviane E. Dittrich is Deputy Director of the International Nuremberg Principles Academy. She is also Visiting Fellow at the Centre for International Studies, London School of
Economics and Political Science (‘LSE’). Previously, she has been Honorary Research Associate at Royal Holloway, University of London, and Visiting Researcher at iCourts(Centre of Excellence for International Courts), University of Copenhagen. She has published on the notion of legacy and the process of legacy building at the international criminal tribunals and has taught on international institutions, the politics of international law,
global crime, and US foreign policy at the LSE, Royal Holloway, and Sciences Po Paris.
Jolana Makraiová is Senior Officer for Interdisciplinary Research at the International Nuremberg Principles Academy. She is an international lawyer with extensive experience
working at international tribunals, including the International Criminal Tribunal for theformer Yugoslavia and the Special Tribunal for Lebanon. Her expertise encompasses international criminal, international humanitarian and human rights law. Views expressed inthis chapter do not necessarily reflect the views of the International Nuremberg Principles
Academy.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

challenged. In fact, from a strictly national viewpoint in Japan, the entire
judicial process seems strongly contested. Today, its legacy is still forming. The intricate nexus of history, memory and justice continues to accompany varied accounts and assessments as dealing with the past continues. The ongoing interpretation and evaluation of the Tokyo Tribunal andcontemporary war crimes trials emerge as a cross-cutting concern for thisedited volume as a whole. The historical and political background of the
Tribunal, its establishment, the substantive and procedural aspects of thetrial itself, the judgment as well as the trial’s receptions in Japan and globally are treated at length in various chapters that follow.
For now, by way of a brief overview, the IMTFE convened its sessions on 29 April 1946 and adjourned upon reading the judgment on 12
November 1948.1 The Tokyo Tribunal had 11 judges and national prosecution teams from 11 countries: Australia, Canada, China, France, India,
the Netherlands, New Zealand, the Philippines, the Soviet Union, theUnited Kingdom and the United States. Based on a 55-count indictment,
the International Prosecution Section originally indicted 28 senior-level
defendants, among them former prime ministers, cabinet ministers, military leaders, and diplomats.2 It tried leaders of the Empire of Japan forClass A (crimes against peace), Class B (conventional war crimes), andClass C (crimes against humanity) crimes. In 1948, all remaining defendants were convicted. The judgment, however, was not unanimous. The
Tokyo Tribunal delivered one majority judgment, two concurring opinions,and three dissenting opinions.3
Both the Tokyo and the Nuremberg Tribunals, as mentioned, contributed significantly to the development of international criminal law andbeyond.4 Though not the first to hold individuals criminally responsiblefor international crimes, both trials represent a landmark development ininternational efforts to prosecute individuals for war crimes, crimes
1

2
3
4

See Annex referring to Charter of the International Military Tribunal for the Far East(‘IMTFE’), 19 January 1946, amended 26 April 1946 (‘IMTFE Charter’). The IMTFE
Charter was created by a Special Proclamation of the Supreme Commander for the AlliedPowers on 19 January 1946 (https://www.legal-tools.org/doc/a3c41c).
See IMTFE, Judgment, 4 November 1948 (https://www.legal-tools.org/doc/8bef6f/).
Ibid.
The Nuremberg principles had been requested to be formulated by the International Law
Commission while the IMTFE trials were ongoing. See Yuma Totani and David Cohen,
The Tokyo War Crimes Tribunal: Law, History, and Jurisprudence, Cambridge University
Press, 2018, p. 7.

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1. Towards a Fuller Appreciation of the Tokyo Tribunal

against humanity, and crimes against peace (known now as aggression).
The significance of both judicial proceedings relates, inter alia, to individual criminal responsibility and a wealth of substantive and procedural
matters. Despite important similarities to the Nuremberg Tribunal, the Tokyo Tribunal was distinct in its organization, jurisdiction and functioning
as well as the complexities it faced. It has been referred to over the years
as a sister institution or twin tribunal and the lesser-known tribunal of thetwo. In some existing scholarship, the existence of the Tribunal has been
overlooked and key facts misstated.5
However, it seems that the importance of the Tokyo Tribunal and its
lasting impact have been increasingly recognized. Questions have arisen
regarding the relevance and precision of previous portrayals of the Tokyo
Tribunal, given the dearth of comprehensive research, especially interdisciplinary research, and the related gaps in knowledge and understanding.
A vibrant research field emanated in Japan decades ago, producing prolific and ground-breaking scholarship in Japanese.6 Scholarship in English,
however, was initially dominated by debates on ‘victor’s justice’.7
Nevertheless, when noting that the Tokyo Tribunal fell into obscurity and the relative paucity of scholarship since the holding of the trial, it isessential to recall the unavailability of trial transcripts over decades. A
significant milestone, in this regard, was R. John Pritchard’s publicationof the trial transcripts in English in 1981.8 Since then, English-language
research has become more multifaceted and nuanced in terms of legal andhistorical perspectives on the trial. Following the turn of the millennium,
we have seen a resurge in interest and burgeoning scholarship, especiallyin English,9 but also in other languages such as German and Chinese.10
5

6

7

8

9

This is noted, inter alios, by Zachary D. Kaufman, “The Nuremberg Tribunal v. the Tokyo
Tribunal: Designs, Staffs, and Operations”, in The John Marshall Law Review, 2010, vol.
43, no. 3, pp. 753-54.
See, especially, the scholarship by Kentarō Awaya, Yoshinobu Higurashi, Yasuaki Ōnuma,
Toshio Okuhara, Hisakazu Fujita, Kōichi Miyazawa, and Kayoko Takeda.
Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial, Princeton University
Press, 1971.
R. John Pritchard, Sonia M. Zaide, and Donald Cameron Watt, The Tokyo War Crimes
Trial. Transcripts and Index, 22 vols., Garland, New York, 1981. The trial transcripts areavailable in the ICC Legal Tools Database.
Most notably, see, for example, book-length accounts (in chronological order): Madoka
Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy, Routledge, London, 2008; Yuma Totani, The Tokyo War Crimes Trial:

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Moreover, new film adaptations, including for television, such as the Netflix series Tokyo Trial or the SMG News series The Tokyo Trials havegained prominence in recent years.11 To date, a voluminous literature has
been developing on the Tokyo Tribunal and continues to evolve.
More than 70 years on, there is heightened attention and noticeable
scholarly activity. The year 2018 marked the seventieth anniversary of thedelivery of the judgment of the IMTFE. A number of events world-wide,
including in Asia, Australia and Europe, took place with a focus on theTokyo Tribunal, its significance, and its legacies. Three main ones arebriefly noted. First, in Nuremberg, an international conference was organized by the International Nuremberg Principles Academy (‘Nuremberg
Academy’) from 17 to 19 May 2018.12 Then, in Shanghai, an international
symposium was organized by the Center for the Tokyo Trial Studies at
Shanghai Jiao Tong University from 11 to 13 November 2018. Finally, inTokyo, an anniversary event entitled “The Present-Day Significance ofNuremberg and Tokyo in Modern International Law”, hosted by the Center for German and European Studies, was held at the University of Tokyo

10

11

12

The Pursuit of Justice in the Wake of World War II, Harvard University Press, Cambridge,
2008; Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal, Oxford University Press, 2008; Yuki Tanaka, Tim McCormack, and Gerry Simpson (eds.), Beyond Victor’s Justice?: The Tokyo War Crimes Trial Revisited, Martinus
Nijhoff, Leiden, 2011; Barak Kushner, Men to Devils, Devils to Men: Japanese War
Crimes and Chinese Justice, Harvard University Press, Cambridge, 2015; Kerstin vonLingen (ed.), War Crimes Trials in the Wake of Decolonization and Cold War in Asia,
1945-1956: Justice in Time of Turmoil, Palgrave Macmillan, Cham, 2016; Kirsten Sellars(ed.), Trials for International Crimes in Asia, Cambridge University Press, 2016; Sandra
Wilson, Robert Cribb, Beatrice Trefalt, and Dean Aszkielowicz, Japanese War Criminals:
The Politics of Justice after the Second World War, Columbia University Press, New York,2017; Kerstin von Lingen (ed.), Transcultural Justice at Tokyo: The Allied Struggle for
Justice, 1946-1948, Brill, Leiden, 2018; Cohen and Totani, 2018, above note 4; Aleksandra Babovic, The Tokyo Trial, Justice, and the Postwar International Order, Palgrave
Macmillan, London, 2019.
For German, see, for example, Philipp Osten, Der Tokioter Kriegsverbrecherprozeß und
die Japanische Rechtswissenschaft, Berliner Wissenschafts-Verlag, Berlin, 2003. For Chinese, see works of the Center for the Tokyo Trial Studies at Shanghai Jiao Tong University,
for instance, CHENG Zhaoqi, SONG Zhiyong, ZHANG Sheng, ZHAI Yi’an and HE
Qinhua, trans. Luxi Jin, Shuqing Min and Wensheng Qiu, The Tokyo Trial: Recollections
and Perspectives from China, Cambridge University Press, Cambridge, 2016.
See, for example, Immi Tallgren, “Watching Tokyo Trial”, in London Review of International Law, 2017, vol. 5, no. 2, pp. 291-316.
International Nuremberg Principles Academy, “70 Years Later: The International Military
Tribunal for the Far East”, Nuremberg, 17-19 May 2018 (available on its web site).

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1. Towards a Fuller Appreciation of the Tokyo Tribunal

on 17 November 2018, with simultaneous English Japanese interpretation.13
This last event was organized not only to mark the seventieth anniversary of the Tokyo judgment, but also the twentieth anniversary of theRome Statute of the International Criminal Court (‘ICC’). Moreover, on
17 July 2018, the crime of aggression within the Rome Statute was activated, meaning that the ICC gained jurisdiction over the last crime fallingunder the umbrella of the most serious crimes of concern to the international community as a whole.14 All three anniversaries and historical moments relate to the Tokyo Tribunal and its legacies. Debates continue tothe present day regarding the historical, legal, political and cultural significance of the trial, demonstrating its contemporary resonance and relevance.
1.2. Origins and Purpose of the Book
This volume builds on the international conference entitled “70 Years Later: The International Military Tribunal for the Far East” organized by the
Nuremberg Academy. Held in Courtroom 600 of the Nuremberg Palace ofJustice in Germany, it was the most extensive event worldwide in 2018
related to this historical trial, receiving considerable international resonance and international media coverage.15
It brought together more than 30 distinguished legal scholars, historians, social scientists, judges and practitioners from America, Asia, Australia and Europe to discuss the trial’s background and context, the similarities and differences of the Tribunals in Tokyo and Nuremberg, substantive and procedural law, obstacles and lessons learned, as well as the last13

14

15

Zentrum für Deutschland und Europastudien, Universität Tokyo, Komaba (‘DESK’), “ThePresent-Day Significance of Nuremberg and Tokyo in Modern International Law”, Tokyo,
17 November 2018 (available on its web site).
Rome Statute of the International Criminal Court, 17 July 1998, Article 5 (‘ICC Statute’)(https://www.legal-tools.org/doc/7b9af9/).
Two film teams (from NHK Japan and Shanghai TV) came to Nuremberg to cover the
conference. See also MAO Xiao, HE Yingxin, ZHANG Wanlu, and LUO Qingyang, “70Years Later: The International Military Tribunal for the Far East – An Overview of the International Conference Held by the International Nuremberg Principles Academy 17-19
May 2018”, in Amsterdam Law Forum, 2019, vol. 11, p. 66. Philipp Osten [Firippu
Osuten], “Tōkyō saiban hanketsu 70 shū-nen kokusai shimpojiumu” [International Conference “70 Years Later: The International Military Tribunal for the Far East”], in Keihō Zasshi (Journal of Criminal Law), 2020, vol. 59, no. 1, pp. 131–35.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

ing impact that the Tokyo Trial and judgment have had on current international criminal law issues. The specific topics featured included, for example, the developments of international research on the Tokyo Tribunal
and war crimes trials in East Asia, the importance of interdisciplinary approaches, and the reception of the Tokyo Trial inside and outside Japan.
The conference also discussed the influence of the IMTFE on various
modern international criminal law doctrines and tribunals, including theInternational Criminal Tribunal for the former Yugoslavia and the ICC.
The conference was opened by Yasuaki Ōnuma who delivered a
specially recorded address via video. Ōnuma appealed for more nuanced
and refined research on the Tokyo Tribunal and the principles arising fromboth the Tokyo and Nuremberg Tribunals, including various Asian perspectives on the subject.16 Keynote speaker Yuma Totani offered a powerful tour d’horizon of the historiography on the Tokyo Trial and a longitudinal perspective on historical and legal scholarship. Totani drew on
works published in both Japanese and English, including by trial observers, practitioners, legal scholars and historians. The conference and theresulting anthology were conceived as a counterpoint to the relative dearthof interdisciplinary research in the area and the need to explore further
avenues of research.
The present volume showcases current research by 18 international
experts, including many leading scholars on the Tokyo Trial who attended
the conference, and captures contemporary readings of the Tokyo Tribunal
and judgment and its historical, legal, political and cultural significance.
Some sketch the contours of contemporary debates and challenge orthodoxies and dominant narratives or lacunae and provide re-orientation;some tackle contested areas and offer views that are critical of the wholeprocess and the outcome; and still others provide lucid accounts of current
understandings, underappreciated aspects or novel interpretations of thesocial lives and inner workings of the Tribunal, politico-historical dynamics, and legal questions. These wide-ranging issues are often discussed
from varied perspectives and contributors sometimes draw markedly different conclusions, providing insightful accounts.
With contributions from both legal scholars and historians throughout, this three-part anthology deliberately features multiple readings of thetrial and combines different disciplinary perspectives in all parts with a16

Most regrettably, Yasuaki Ōnuma passed away in October 2018.

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1. Towards a Fuller Appreciation of the Tokyo Tribunal

view to an interdisciplinary dialogue. Most importantly, the volume includes Japanese voices and expert perspectives. Nonetheless, it does not
purport to provide a definitive account of the value of the Tokyo Trial andits judgment in international criminal law or history. Admittedly, the present volume does not and cannot do justice to the trial exhaustively as alegal, political, social and cultural process, but instead may thoroughly
emphasize certain aspects, deepen common understanding, or reinvigorate
and reorient ongoing debates. It is hoped to revitalize discussion and foster interest in multidisciplinary dialogues about this significant but complex and contested historical trial.
1.3. Structure of the Book
The three parts dividing this book are:I. Foundations and Facets of the Trial;
II. Dynamics and Dimensions of the Trial; andIII. Receptions and Repercussions of the Trial.
This structure follows a logical sequence from the origins and characteristics of the historic trial itself to the perception and relevance of thetrial today. Part I on “Foundations and Facets of the Trial”, which traces
the origins of the trial, the establishment and functioning of the Tribunal,contains five chapters. Part II on “Dynamics and Dimensions of the Trial”
contains six contributions on procedural and substantive issues relating to
the trial. Finally, Part III on “Receptions and Repercussions of the Trial”
takes the trial beyond the immediate aftermath of the Second World War
and explores its ongoing receptions and repercussions over time, insideand outside Japan, in light of the multifaceted notions of crime, punishment, justice and memory.
Besides the introduction, this anthology consists of 18 chapters, including the opening and concluding reflections. Gerry Simpson’s openingreflections in Chapter 2 connect the chapters and themes of the present
book with the wider scholarship and surge of interest in the Tokyo Trial. It
provides a brilliant introduction to the field of study of the Tokyo Tribunal,
with an emphasis on re-orienting the field and illuminating hidden histories, often marginalized actors, and obscured aspects of the trial. Simpson’s coinage of the neologism ‘Tokyoberg’ cogently captures the idea ofa single event, a transformative moment in the history of war crimes trials,
and the conjunction between Tokyo and Nuremberg.
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The Tokyo Tribunal: Perspectives on Law, History and Memory

Part I opens with Chapter 3, in which David Crowe provides acomprehensive comparative perspective on the Tokyo and Nuremberg
Trials. The chapter extensively covers the background preparation andplanning of the trials and sheds light on the proceedings. Crowe effortlessly combines exploring the historical genesis of the proceedings with highlighting the legal issues that arose along the way, including challenges
brought up by the accused during the proceedings and reasons behind dissenting opinions. In a comparative vein, the chapter pays special attention
to the identified differences between the two trials. Crowe emphasizes
their respective broader political contexts and the distinct dynamics on the
ground, in Japan and Germany, while discussing the influence of Allied
policy considerations and American leadership decisions. The chapter astutely addresses the complexities of the Tokyo Trial, including the complex indictment, the United States’ decision not to indict the Emperor, thecritique of ‘victor’s justice’, and the perceived vengeance over Pearl Harbor. Crowe concludes that MacArthur’s decision not to allow the publication of the transcripts “created a serious void that robbed scholars andothers the opportunity to better understand the complex dynamics of thetrial and its outcomes”.
Chapter 4 places the notion of “transcultural justice” at the heart of
the analysis as Kerstin von Lingen presents her research on the hitherto
overlooked yet remarkable transcultural endeavour at Tokyo bringing together different national backgrounds, languages, ideologies and perceptions of justice. The chapter thoughtfully discusses the selection of judges
and formations of transcultural norms of legality and legitimacy as well as
notions of justice. Von Lingen also addresses head-on the context of colonial endeavours, structural difficulties behind the Tribunal and the ‘team
spirit’ amongst the national teams. Finally, six fields of friction are identified when scrutinizing the human elements of the trial, including the challenges of daily life away from home for the international judges, the clashof legal cultures, the conduct of the trial, technical issues, and the social
lives of Tribunal officials and staff yet to be fully studied. Von Lingenconcludes by stressing that suitable personnel were hired to execute theduties of the trial, that a strong feeling of commitment and even ‘duty’
existed, and that ultimately so-called ‘legal flows’ emerged given the‘transcultural learning system’ at the Tokyo Tribunal and beyond.
In Chapter 5, Diane Orentlicher explores the genesis of the IMTFE
and its legal origins. She begins with a thoughtful account of the relative
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1. Towards a Fuller Appreciation of the Tokyo Tribunal

neglect of the Tokyo Tribunal by legal scholars by elaborating on two key
points: perceptions of Tokyo as “an echo of Nuremberg” and as an“American show” given US leadership and dominance. Orentlicher also
provides a comparative perspective on the legal frameworks of the IMT
and the IMTFE, revealing the identified derivation and differences between the two Charters and Tribunals. With a view to reconsidering thelegal legacy of the Tokyo Tribunal, Orentlicher highlights a substantive
contribution to the field of international criminal law and international
jurisprudence that has long been obscured: the successful prosecutions ofsexual violence as war crimes. She concludes that the Tokyo Tribunal’s
legacy has been recently revived and revisited in many aspects, including
failures as well as successes of the Tribunal, which offer critical lessons
for contemporary accountability efforts.
In Chapter 6, Diane Marie Amann addresses the critical and muchoverlooked role of women at the Tokyo Tribunal. Scrutinizing “glimpses
of women”, Amann contributes an insightful chapter that aims to challenge women’s muted roles and marginal appearance in academic discourse and in three filmed accounts titled “Tokyo Trial” and to give avoice to the women who worked at the Tribunal. As Amann demonstrates,
women served on legal teams as lawyers, and analysts, as well as stenographers and translators, in addition to secretaries and administrators. The
chapter profiles seven women, mapping their respective roles and stories.
In conclusion, Amann fittingly notes the difficulties in obtaining data andreliable information with respect to tracing women and makes a case formore research to be undertaken on questions of not just intersectionality,
race, ethnicity, but also sexuality, gender, culture and class.
The last chapter in Part I, Chapter 7 sheds light on a so-far littleexplored facet of the judicial proceedings, namely translation and interpreting. Kayoko Takeda convincingly reveals the process of trial and error
in establishing the interpreting system and procedures at the Tokyo Trial.
She offers a detailed account of the translation, interpreting and runningof the trial in different languages with 11 judges on the bench, most ofthem speaking in languages different from their mother tongues. Drawing
on archival documents and records, Takeda assesses the three-tier interpreting mechanism with Japanese nationals as court interpreters and theerror checking mechanism of monitors and language arbitration boards
based on the past lessons from the Class B/C war criminal trials. She discusses the typical challenges of consecutive interpreting at the Tokyo Trial,
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The Tokyo Tribunal: Perspectives on Law, History and Memory

the lack of available and competent interpreters, and the disruptions, negotiations and improvisations of procedural rules on interpretation.
Part II of the volume begins with Chapter 8, in which Yuma Totani
provides a cogent account of the important topic of individual criminal
responsibility. With a focus on theories of individual criminal responsibility and methods of proof, she outlines the prosecution and defence cases,
bearing in mind the wider question of the legacy of the majority judgment.
The topic of individual responsibility is addressed with a focus on competing modes of liability and linkage-based approaches with regards toevidence. The chapter reiterates the trial’s importance not only for experts
in the field but for future students who wish to explore the jurisprudence
and the continuing relevance of this trial for international justice and accountability in the twenty-first century.
In Chapter 9, Robert Cribb offers a comprehensive assessment of
the charges of conventional war crimes, particularly, the ill-treatment ofprisoners of war and civilian internees brought before the IMTFE. Analysing the indictment and respective counts, the trial proceedings, the position of the defence as well the judgment itself, Cribb concludes that thosecrimes played a relatively subordinate role in the process. He draws attention to the fact that the IMTFE offered no absolute acquittals. He also
highlights that the judges had the discretion to use various charges in theirsentencing and dismiss charges as they deemed fit when determining theguilt of the accused. The chapter analyses in detail the differences between direct responsibility and command responsibility (Counts 54 and 55
respectively) and notes that all defendants found guilty of Count 54 andtwo defendants under Count 55 were sentenced to death.
Turning to crimes against peace, Chapter 10 presents an overview
of the development of international criminal law with a particular focus
on the crime of aggression. Donald Ferencz, the son of Benjamin Ferencz,
the last living prosecutor from the Nuremberg Trial, argues that the legacyof the Tribunals with respect to the crime of aggression is intertwined andstill unfolding. Ferencz offers his insightful reading of the early perceptions of the Nuremberg and Tokyo trials and the issue of ex post facto law
there. The chapter outlines the journey from Nuremberg and Tokyo to theactivation of the ICC’s jurisdiction over the crime of aggression in 2018.
Ferencz offers a tale of caution noting visible opposition by major powers
and unique restrictions imposed upon the jurisdiction over that crime. Despite any imperfection, he concludes, the international tribunals have conNuremberg Academy Series No. 3 (2020) – page 10

1. Towards a Fuller Appreciation of the Tokyo Tribunal

tributed to vital developments “in the direction of replacing the law offorce with the force of law”.
In Chapter 11, Marina Aksenova offers an analytical assessment of
substantive law issues in the Tokyo Trial through the lens of ‘constructedtemporality’, inviting readers to view international criminal law “as a‘puzzle’ with various points of reference grounded in different interconnected and mutually enriching moments in time”. Challenging the dominant narrative of a linear development of international criminal law, from
Nuremberg to The Hague, Aksenova suggests that the discipline moves incircles and, thus, temporality is a mere construction. In this alternative
view, Aksenova argues that the Tokyo ideas and concepts may pick up
again at a later moment in time, focusing in particular on four issues: conspiracy, crime of aggression, war crimes, and superior responsibility. She
demonstrates that the Tokyo judgment was highly factual and highlights
the fact-based methodology adopted in Tokyo, and also in Nuremberg. In
conclusion, she reflects on the idea of recurring legal problems, then andnow, linking this to ongoing debates on the best ways to attribute individual responsibility for mass atrocities.
The next two chapters take a closer look at the Australian judge andPresident of the IMTFE, Sir William Webb; one focusses on examining
the significance of the so-called “President’s Judgment” and the other, on
reassessing perceptions of his judicial performance and conduct.
In Chapter 12, David Cohen insightfully reveals a somewhat hidden
dimension by giving prominence to the “President’s Judgment”, an unpublished and less known document compared to his concurring opinion.
The starting point of the chapter is why Judge Webb refrained from publishing the typescript containing no less than 638 pages as his concurring
opinion and what significance it has for the legacy of the Tribunal. Cohencogently shows how the draft document addresses not only the substanceof the trial but also, remarkably, individual defendants and individual acts
at length. He notes that Judge Webb reasoned his conclusion both in fact
and law. The chapter turns to short case studies of Hata, Hiranuma, Hirota,
Kimura, Shigemitsu and Shimada. Cohen notes, inter alia, that Webb differed on the nature of the conspiracy charges and also implicated the Emperor in his draft judgment. Cohen concludes by noting that, among otherpossible reasons, Judge Webb did not publish the typescript as it would
show “deep flaws” in the majority’s approach; and in turn, that the views
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The Tokyo Tribunal: Perspectives on Law, History and Memoryof other judges dominated the narrative of the judgment, the trial and theirlegacy as a whole.
Chapter 13 concludes Part II, in which Narrelle Morris criticallyand astutely reassesses the perceptions of Webb. It constructs the historical legacy of the IMTFE by looking at his role as a judge at the Tokyo
Tribunal and his role as a judge in Australia. At the outset, she examines
how judges shaped the IMTFE’s opinion while concluding that Webb wasindeed one of the few jurists of his time who had relevant extensive
knowledge and practical experience. The nuanced chapter analyses his
contradictory views, his presidency, the criticism of other judges against
him, and public scrutiny that emerged over time in an effort to rehabilitatehim. In concluding, she argues that the criticism surrounding Judge Webb
stems from misunderstandings or lack of clarity regarding the difficulties
that faced him and the bench at the IMTFE. Morris makes an appeal for
new research related to the role of judges, critical acceptance of criticism,and more consideration of the broader context.
Part III of the volume begins with a focus on Japanese perspectives
on the Tokyo Trial. In Chapter 14, Philipp Osten provides an insightful
account of the crimes stipulated in the IMTFE Charter and their echo
among contemporary Japanese legal scholars in the immediate wake of
the Trial. The contribution sheds light on the contemporary receptions andlegal debates within Japan, “more or less forgotten among Japanese jurists
today” and “for the most part unknown outside of Japan”. Following an
account of the three crimes, Osten turns to the contemporary scholarly
debates on the crimes, providing an engaging discussion about leading
Japanese criminal law scholars and public international law scholars. He
conveys the interesting observation that, surprisingly, most contemporary
legal scholars in Japan held positive views of the concept of crimes despite their awareness of the many legal shortcomings, thus anticipating, tosome extent, legal concepts that are now recognized in international criminal law. The chapter ends with a brief critical account of research on theTokyo Trial in Japan, shedding light on the apparent reluctance to engage
in further depth, scholarly neglect as well as reappraisals of the legal significance of the Tokyo Trial by the latest generation of Japanese scholars.
Regarding memory formation in Japan, Beatrice Trefalt offers an illuminating analysis of the role of the Tokyo Trial and its place in the development of broader attitudes towards the war and its aftermath from theperspective of Japanese studies in Chapter 15. With a focus on the domesNuremberg Academy Series No. 3 (2020) – page 12

1. Towards a Fuller Appreciation of the Tokyo Tribunal

tic context of the IMTFE, Trefalt draws attention to the Japanese audiences of the trial and its aftermath. The chapter complements legal-historicalanalyses by offering a contextual approach as well as an articulate analysis of the daily press and magazines for general readership, and depictionsof the Tokyo Trial and the individuals accused. The focus on language,
narratives, constructions of meaning, and memories is noteworthy. Examining three different periods in the post-war life of the Tokyo Trial, Trefalt
highlights that the trial had a broader cultural, social and symbolic meaning in Japan, in light of the ongoing contemporary debates, the politicalsituation and contested memories and commemorations, and the nature ofcivil society.
The next two chapters turn to sentencing and subsequent developments in terms of punishment and prisons, albeit from different angles,
and with distinct foci and approaches.
In Chapter 16, Sandra Wilson perceptively examines the role andreality of clemency for war criminals convicted by the IMTFE. At the outset, she sketches the context of the post-war discussions, including theforms and grounds of clemency, and how eventually clemency was extended to those convicted by the IMTFE, thus becoming a post-conviction
reality. Wilson analyses the dealings with clemency for Japanese war
criminals before 1952 within the context of the San Francisco Peace treaty.
The negotiations that surrounded the release of IMTFE prisoners are acore focus and offer insights into the interplay of legal and political issues.
The chapter offers a detailed account of the history of releases of individual prisoners against the backdrop of the changing political context, postcolonial politics, and evolving relations between Japan and other States.
In conclusion, it is noted that the last Japanese war criminals left Sugamo
Prison in May 1958, three weeks after the last German war criminals werereleased from Landsberg Prison.
Looking more closely at the social history of criminal trials andprisons, Franziska Seraphim offers a novel socio-empirical assessment of
spaces of punishment in Chapter 17. The chapter insightfully analyses thelegalities, temporalities and spatialities of the places of incarceration of
war criminals drawing on the field of legal geography, with a focus on thenexus of the social, the legal, and the spatial. In light of the interplay of
evolving policies to punish war criminals, penal practices, and carceralgeographies, Seraphim explores the relational spatialities of imprisonment,
networks of prisons, and social relations inside a prison. The focus is on
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The Tokyo Tribunal: Perspectives on Law, History and Memory

the two prisons for the major war criminals, the Sugamo Prison in Japanand the Landsberg Prison in Germany. She considers their embeddedness
in communities and recounts the stories of some prisoners, including
Sasakawa in Japan and Krupp in Germany and their post-war return following incarceration. The chapter also captures how prisons acted as apivot between international politics of justice and domestic politics of rehabilitation, and were centre points in the clemency programmes. This
unique perspective allows a deeper understanding of the sense of place ofprisons as spaces of punishment and the social history of the Tokyo Trialand ensuing developments.
Kuniko Ozaki, former judge at the ICC, considers the contemporary
resonance of the Tokyo Tribunal in Chapter 18 and critically points tochallenges, past and present. The chapter pinpoints lessons learned fromprocedural law, noting the importance of the IMTFE in shaping the founding instruments of contemporary international criminal tribunals, including provisions on fair trial and public hearing by a competent, independent and impartial tribunal, and the presumption of innocence. Turning tosubstantive law, Ozaki notes that the ICC has indeed adopted a different
approach to individual criminal responsibility and command responsibility,
as specified in Articles 25 and 28 of the Rome Statute. In her view, theeffectiveness of any international criminal court is based on three requirements, namely, the legitimacy and integrity of the court, procedural
guarantees of fair trial rights, and substantive law based on the principles
of legality and individual culpability. The chapter concludes that the
IMTFE fell short in terms of the above requirements and that the ad hoc
Tribunals and the ICC face considerable challenges.
Finally, in concluding reflections, Christoph Safferling returns to acomparative perspective on Nuremberg and Tokyo. Chapter 19 provides
some thoughtful forward-looking reflections, inter alia, on the scope of
research on the Tokyo Trial, the long and rich tradition of a GermanJapanese criminal law dialogue and academic exchange. Safferling sheds
light on the broader social and political dynamics in Germany and Japanand sketches post-Second World War developments. Moreover, he highlights the importance of continuously engaging with the Tokyo Tribunal
today and exploring further new research avenues.
It appears timely to take stock more than 70 years after the judgment of the Tokyo Tribunal. 2020 marks 75 years after the end of the Second World War in the Asia-Pacific region, which from a different perspecNuremberg Academy Series No. 3 (2020) – page 14

1. Towards a Fuller Appreciation of the Tokyo Tribunal

tive also marks the historical devastation caused by the atomic bombs
dropped over Hiroshima and Nagasaki. Anniversaries and commemorative settings provide opportune moments to stimulate further critical reflection, foster ongoing dialogue, and deepen understanding. Overall, thisvolume adds new insights to the extensive literature on the Tokyo Tribunal, its judgment and legacies, and seeks to stimulate further interest in thelegal proceedings and historical context, as well as its long-term impact
and ongoing significance. The book aims to contribute to ongoing reflections and evolving understandings of the role and resonance of the Tokyo
Tribunal, as well as other contemporary war crimes trials and accountability efforts, and is an invitation to continue exploring fruitful avenues forresearch and scholarship in the future. As an open-access publication, it ishoped that the book is read widely as a contribution to contemporary debates on law, history and memory by capturing a rich array of perspectives on the Tokyo Trial and, more generally, the history and ongoing significance of war crimes trials.

Nuremberg Academy Series No. 3 (2020) – page 15

2______
Opening Reflections:Tokyoberg
Gerry Simpson*
2.1. Introduction
For some time now, I have been using the term ‘Tokyoberg’ to refer to atransformative moment in the history of international criminal trials thattook place between 1945 and 1948 in the two great cities of Nuremberg
and Tokyo. It seems to me that these two trials can be understood as a single event in which a number of revolutions occurred in the way we understand, and articulate, the world of international legal diplomacy (for example, the emergence of individual responsibility, the criminalization ofwar, the invention of crimes against humanity). So, a book on the Tokyo
Trial emanating from a conference on the same subject held in Nuremberg
somehow exemplifies this conjunction (and, indeed, many of the chapters
are explicitly comparative in this ‘Tokyobergian’ vein: see especially, David Crowe’s illuminating study1).
The Tokyo Trial itself has been undergoing a two-decade long re2
vival, which in turn built on earlier works, both contemporaneous with*1

2

Gerry Simpson is Professor of International Law at the London School of Economics andPolitical Science (‘LSE’) and a Fellow of the British Academy. He previously taught at the
University of Melbourne (2007-2015), the Australian National University (1995-1998) andLSE (2000-2007), and has held visiting positions at ANU, Melbourne, New York University and Harvard. He is the author of Great Powers and Outlaw States (Cambridge University Press, 2004, winner of the American Society of International Law Annual Prize forCreative Scholarship in 2005), and Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity, 2007).
David M. Crowe, “The Tokyo and Nuremberg International Military Tribunal Trials: A
Comparative Study”, chap. 3 below.
Most notably David Cohen and Yuma Totani, The Tokyo War Crimes Trials: Law, History,
and Jurisprudence, Cambridge University Press, 2018; Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg legacy, Routledge,
London, 2008; Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A
Reappraisal, Oxford University Press, 2008; Kerstin von Lingen (ed.), Transcultural Justiceat the Tokyo Tribunal: The Allied Struggle for Justice, 1946-1948, Brill, Leiden, 2018;
Kerstin von Lingen (ed.), War Crimes Trials in the Wake of Decolonization and Cold War in

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The Tokyo Tribunal: Perspectives on Law, History and Memory

the Trial,3 and more recently in the 1970s and 80s.4 All of this includes
important writing on Justice Pal, Antonio Cassese’s richly rewarding dialogue with Justice Röling, the scholarship of Kentarō Awaya, Yuma Totani’s ground-breaking study and much, much more besides.5
This volume, brought to us by the International Nuremberg Principles Academy and co-edited by Viviane Dittrich, Kerstin von Lingen,
Philipp Osten and Jolana Makraiová, is an intelligently curated addition tothis corpus. It is especially good at uncovering the hidden histories of theTokyo Trial: events that happened in and around the Trial that were somehow not recognized as being part of it,6 participants or groups of participants that were written out of history,7 individuals who have been misrepresented,8 and accounts and aspects of the Trial that have been obscured.9

3

4

5

6
7
8

Asia, 1945-1956: Justice in Time of Turmoil, Palgrave Macmillan, Cham, 2016; Kirsten
Sellars (ed.), Trials for International Crimes in Asia, Cambridge University Press, 2016; Sandra Wilson, Robert Cribb, Beatrice Trefalt and Dean Aszkielowicz, Japanese War Criminals:
The Politics of Justice After the Second World War, Columbia University Press, New York,2017; Kirsten Sellars, “Imperfect Justice at Nuremberg and Tokyo”, in European Journal ofInternational Law, 2010, vol. 21, no. 4, pp. 1085-1102; Kerstin von Lingen (ed.), Debating
Collaboration and Complicity in War Crimes Trials in Asia, 1945-1956, Palgrave Macmillan,
New York, 2017.
For discussion of contemporaneous Japanese scholarship, see chap. 14 below by Philipp
Osten. From the American side, see Joseph Berry Keenan and Brendan Francis Brown,
Crimes against International Law, Public Affairs Press, Washington, 1950; and John AlanAppleman, Military Tribunals and International Crimes, Bobbs Merrill Co., Indianapolis,
1954.
Richard H. Minear, Victors’ Justice: Tokyo War Crimes Trial, Princeton University Press,
1971. See also Ann Marie Prévost, “Race and War Crimes: The 1945 War Crimes Trial of
General Tomoyuki Yamashita”, in Human Rights Quarterly, 1992, vol. 14, pp. 303-05.
Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of WorldWar II, Harvard University Press, Cambridge, 2008; On Pal, see Barry Hill, Peacemongers,
University of Queensland Press, 2014; Radhabinod Pal, International Military Tribunal for
the Far East: Dissentient Judgment, Sanyal, Calcutta, 1953; Radhabinod Pal, Crimes in International Relations, University of Calcutta, 1953; Elizabeth S. Kopelman, “Ideology andInternational Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial”, in
New York University Journal of International Law and Politics, 1991, vol. 23, no. 2; Keenan and Brown, 1950, see above note 3; and Appleman, 1954, see above note 3.
See Franziska Seraphim, “Spaces of Punishment”, chap. 17 below.
See Diane Marie Amann, “Glimpses of Women at the Tokyo Tribunal”, chap. 6 below.
See David Cohen, “The “President’s Judgment” and Its Significance for the Tokyo Trial”,
chap. 12 below; Narrelle Morris, “Constructing the Historical Legacy of the International
Military Tribunal for the Far East: Reassessing Perceptions of President William Webb”,
chap. 13 below; Diane Orentlicher, “The Tokyo Tribunal’s Legal Origins and Contribu-

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2. Opening Reflections: Tokyoberg

A reader of this volume has the experience of seeing the Trial anew
from the perspective of the various Japanese publics, the relatives of ClassA accused war criminals, the women who made the Trial a working concern, translators, diplomats, Japanese scholars, and many others.10 And, toreturn to my initial observation, often, the authors treat Nuremberg andTokyo as a single moment of innovation with Tokyo no longer what it has
so long been, namely “a sister institution, nothing more”, 11 a “lesser
known sibling”,12 or a victim of American vengefulness over Pearl Harbor.13
It is to this question of innovation that I want to turn first, but thistime thinking of the scholarship contained in these pages as a reorientation of the ‘Tokyoberg’ field.
2.2. Reorienting the Field
The authors tell us a great deal about contemporary war crimes trials: their
origins, the repetitiveness of their concerns and dilemmas, their extraneous materials, and their discordant notes. We can perhaps get some sense,
too, from a reading of this book, of how our beliefs and intuitions about
war and law have changed, or stayed the same, over the last century. In
particular, the examination of Tokyo’s intersections and affiliations withsome broader post-war debates – Japanese revisionism, Allied culpability,
the continuing convulsions around the ‘crime’ of aggression, and the
problem of history, memory and justice – gives this volume a very contemporary resonance.

9

10

11

12

13

tions to International Jurisprudence as Illustrated by Its Treatment of Sexual Violence”,
chap. 5 below.
Kevin Jon Heller and Gerry Simpson (eds.), The Hidden Histories of War Crimes Trials,
Oxford University Press, 2014; Philipp Osten, “‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarship”, chap. 14 below; Orentlicher, chap. 5 below.
For an extremely useful set of primary documents, see Neil Boister and Robert Cryer(eds.), Documents on the Tokyo International Military Tribunal: Charter, Indictment andJudgments, Oxford University Press, 2008.
Orentlicher, chap. 5 below, p. 86, quoting Madoka Futamura, War Crimes Tribunals andTransitional Justice: The Tokyo Trial and the Nuremberg legacy, Routledge, London,
2008, p. 9.
See Morris, chap. 13 below, p. 275; Kerstin von Lingen, “The Tokyo Tribunal: A Transcultural Endeavour”, chap. 4 below.
Orentlicher, chap. 5 below. See also Yuma Totani, “Individual Responsibility at the Tokyo
Trial”, chap. 8 below; Crowe, chap. 3 below.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Perhaps we should not be surprised by all of this. Kuniko Ozaki
makes a specific plea to think of the International Military Tribunal for the
Far East (‘IMTFE’) as facing problems (procedural, substantive, organizational) with enormous contemporary resonance. For Ozaki, the Tokyo Trial was, in some respects, and more than Nuremberg, a rehearsal of the later dilemmas facing the Hague Tribunals. But, as Marina Aksenova points
out, I think correctly, international criminal law, as a field, is much morecyclical than linear. She uses the idea of “constructed temporality”14 toshow just how unchanging the pre-occupations of international criminal
lawyers have been. As she demonstrates, much of the debate at Tokyo has
re-appeared at different times throughout the century-long history of thediscipline: the under- and over-inclusiveness of the definition of aggression,15 the expansiveness of conspiracy theories,16 and the insecure relationship between attention to facts and development of new modes of liability17 (the emphasis, at Tokyo, most decidedly, on the former). Fortunately, no one spends much time on the hoary chestnut of ‘Victor’s Justice’ (David Cohen and Crowe are rarities in having interesting things to
say about it). This debate probably conceals more than it reveals. Don
Ferencz, who has worked tirelessly to keep the crime of aggression on theagenda and who has written a very useful summary of those efforts in thisvolume, alludes to one of Robert Jackson’s great epigrams on the subject(“to pass these defendants a poisoned chalice is to put it to our own lips aswell”) before revealing that he never said it.18 And this idea of the unsaid
runs through the chapters.19
In the end, Aksenova asserts that: “it was an achievement in itself
that the debates about the destiny of the defendants took place within theparameters set out by a legal trial”. 20 What sort of achievement was itthough? Well, it was certainly a very bureaucratized achievement. Repeat14

15

16
17
18

19
20

Marina Aksenova, “Substantive Law Issues in the Tokyo Judgment: From Facts to Law?”,
chap. 11 below, pp. 225 ff.
See Donald M. Ferencz, “Nuremberg, Tokyo and the Crime of Aggression: An Intertwined
and Still Unfolding Legacy”, chap. 10 below.
Totani, chap. 8 below; Cohen, chap. 12 below.
Totani, chap. 8 below.
See Ferencz’s discussion of John R. Barrett, “No Poisoned Chalice”, The Jackson List,
2013, crediting the German film-maker, Ullabritt Horn, with having noticed the discrepancy (available on its web site).
Ibid.
Aksenova, chap. 11 below, p. 248.

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2. Opening Reflections: Tokyoberg

edly in these chapters, one is introduced to the idea of the ‘administered’
trial. Indeed, as Beatrice Trefalt notes in relation to the ‘stenographic trial’:
Sugawara remembered enviously [that] his American counterparts could have whatever had been said in the morning
typed up during lunchtime, and ready for the afternoon session, whereas the Japanese side could wait for up to a monthfor a typed record, so that “we experienced an unconditionalsurrender in administrative terms as well”.21

Kayoko Takeda, too, discusses the Language Arbitration Board established by the Allies to determine the outcome of translation disputes
while Sandra Wilson, an American historian based in Western Australia,
usefully decentres trial and prosecution by showing how clemency became what she calls a “bureaucratic norm”.22
A form of re-orientation is experienced, too, in the reading of thetrial by Osten, who gives us a fresh perspective on the legacy of the various categories of criminality: aggression (ill-defined), crimes against humanity (a minor concern at Tokyo) and war crimes (where Tokyo left arather important record of innovation). But Osten’s achievement here is torevive interest in contemporary and near contemporary responses to thetrial by Japanese scholars (Crowe does something similar with the Japanese defence lawyers). These range from the affirmative naturalism of
Shigemitsu Dandō to the sceptical textualism of Kenzo Takayanagi (bemoaning the absence of a “penal consciousness” capable of undergirding
the lawfulness of the trial). As Osten puts it: “Looking back upon the Japanese scholarly debate, the most surprising finding is that some of themost subtle and visionary assessments were publicized by legal scholars
during or shortly after the trial”.23
When it comes to categories of criminality, the crime of aggression,
more than any other, has been subject to this re-orientation. This reorientation is very present in Cohen’s rehabilitation of William Webb and
21

22

23

Beatrice Trefalt, “Remembering the Tokyo Trial, Then and Now: The Japanese Domestic
Context of the International Military Tribunal for the Far East”, chap. 15 below, p. 335,
quoting Yutaka Sugawara, Tōkyō saiban no shōtai [The True Character of the Tokyo Trial], Jiji, Tokyo, 1961, p. 128, quoted in Sumitani, “Tōkyō saiban no kiroku” [Records of
the Tokyo Trial], 3.
Sandra Wilson, “Clemency for War Criminals Convicted in the Tokyo Trials”, chap. 16
below, p. 355.
Osten, chap. 14 below, p. 326.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

in Ferencz’s broadside against the Great Powers. It has long been a frustration of those engaged in international criminal law that neither Tokyo
nor Nuremberg provided a workable definition of aggression (though as
von Lingen points out, establishing evidence of aggression was much
more complicated at Tokyo).24
Others, though, direct us away from our obsessions with aggression
towards other criminal categories.25 Robert Cribb, for example, wants us
to re-focus on the Potsdam Declaration, with its emphasis on prisoners ofwar (‘POWs’) (and breaches of the 1929 Geneva Convention) in Article
10. Here, Cribb makes the interesting point that the prosecution of theJapanese for crimes against POWs (depictions of which were popularizedlater in films such as Bridge over the River Kwai and novels like The Far
Road to the Deep North) was largely unsuccessful. 26 Most defendants
were acquitted on these charges and the court refused to accept the prosecution strategy of combining a theory of collective responsibility with amass of concrete evidence of atrocity (but with precious little linking of
this mass to the defendants themselves). Totani also directs our attention
away from the crime of aggression and towards the questions of individual responsibility (and the competing modes of liability and linkage-based
approaches to the question of evidence, or lack thereof, attached to thisidea) for war crimes embedded in Counts 54 and 55.27
In the end, all of this work reshapes our understanding of the Tokyo
Trial and rejects the idea of the Trial as a one-off procedural event inwhich the leading Japanese war criminals were charged with the crime ofaggression.

24

25
26

27

Perhaps Justice Pal’s most persistent insight involved connecting international criminal
law to a project for stabilizing and securing existing power distributions within international society. For him, the criminalization of aggression, in particular, was simply a wayof freezing the status quo. The criminal repression of territorial change was meant to ensure that the frontiers created by the original sin of colonial maldistribution would remain
fixed by the legitimating force of an international rule of law. Later, the deepening juridification of war was intended to remove armed struggle from the repertoire of anti-colonial,anti-Western political movements and states (this was his anti-imperialism).
For example: Totani, chap. 8 below, Orentlicher, chap. 5 below.
Robert Cribb, “‘Conventional War Crimes’: The International Military Tribunal for the Far
East and the Ill-Treatment of Prisoners of War and Civilian Internees”, chap. 9 below.
Totani, chap. 8 below.

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2. Opening Reflections: Tokyoberg

2.3. Coming in from the Margins of History
Diane Marie Amann’s chapter is a highly readable and significant adjustment to our thinking about the role of women in Tokyo, and especially acohort of quite remarkable individuals. She uses three films to demonstrate the different ways in which the trial was represented before goingon to profile seven women: Virginia Bowman, Lucille Brunner, Eleanor
Jackson (a federal law clerk who ends up dancing with John Profumo),
Helen Grigware Lambert, Grace Kanode Llewellyn, Bettie Renner,
Coomee Strooker-Dantra, and Elaine B. Fischel (author of a noteworthy
memoir).28 Some of the stories are almost novelistic.
Fischel, who worked as a ‘legal stenographer’, had a remarkably
colourful life in Tokyo: dining with the brother of the emperor, riding
horses with Justice Röling, and conducting affairs with a man later revealed to be a KGB spy and with John Brannon, the defence attorney for
the Japanese naval defendants. Later she went on to practise law for 60
years retiring as an attorney at ninety-five.29
Another Tokyo female lawyer, Grace Kanode Llewellyn was, according to Amann, probably the first female attorney to speak before aninternational war crimes tribunal, playing a notable role in developing theProsecution case on some key matters. As Amann points out, not only arethese women largely missing from the record or untraceable (the problemof the married name), but when they are placed on the record, they aredescribed as ‘secretaries’ or ‘reporters’ even in cases when they are performing technical legal work (on which subject, there is an entertaining
passage in Amann’s chapter in which she discussed the ‘Legal Portias’ at
the trial).30
Women were also much more present as victims than some accounts imply. Diane Orentlicher suggests that, though the Tribunal’s
treatment of sexual violence can be criticized on all sorts of grounds, it
actually made a signal and early contribution to the notion that sexual violence could constitute a war crime (despite often being cited for the opposite position). The judgment makes it clear that crimes of sexual violence(at Nanking [Nanjing], for example) were recognized as being of the most
28

29
30

Elaine B. Fischel, Defending the Enemy: Justice for the WWII Japanese War Criminals,
Bascom Hill Books, Minneapolis, 2009.
Amann, chap. 6 below, pp. 116 ff.
Ibid., p. 120.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

serious concern to the court – though, as Orentlicher acknowledges, thisawareness did not extend to the enforced prostitution of women from Korea and other nations (often referred to as the ‘comfort women’ issue).31
Women played key roles in interpretation of the Nuremberg trial.32
Translation at Tokyo, by contrast, was a largely male and much more anarchic affair, after which interpreters involved had very little reason to
boast of having worked with the Tribunal.33 This is not to understate thelater problems experienced during the trials in the International Criminal
Tribunal for the former Yugoslavia (even with the increasing professionalization of the trial translation).
Translators, though, have been largely absent as the subjects of international criminal law history.34 Takeda describes the often-abortive effort of the occupying authorities to provide adequate translation for thetrials, pointing out that the Allies were reduced to using Masakatsu
Hamamoto, General Yamashita’s personal interpreter, for official translation during his trial and setting up a Language Arbitration Board during
the Tokyo Trial to settle disputes among interpreters and interpretations.
Takeda quotes Justice Webb’s unenthusiastic, procedurally dubious statement:
Well, as I explained before, all this interpretation of every
word is not required in the interests of justice. It is requiredin the interests of propaganda. That is the whole point. Thiselaborate system of interpreting every word does not obtainin any national court. We try murderers there. We try men
who cannot speak the English language, but we do not haveall of this interpreting. I would like the Japanese to understand that.35

For Takeda though, despite this, Nuremberg was one of the transformational moments in the history of interpretation, foreshadowing the
31
32
33

34
35

See Orentlicher, chap. 5 below, p. 75.
See also Amann, chap. 6 below.
See also Francesca Gaiba, The Origins of Simultaneous Interpretation: The Nuremberg
Trial, University of Ottawa Press, 1998; Ellen Elias-Bursać, Translating Evidence and Interpreting Testimony at a War Crimes Tribunal: Working in a Tug-of-War, Palgrave
Macmillan, London, 2015.
Crowe, chap. 3 below
The Transcripts of the Proceedings of the International Military Tribunal for the Far East,
pp. 2405-06 (https://www.legal-tools.org/doc/b77967/).

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2. Opening Reflections: Tokyoberg

new systems of translation deployed at the UN and in other post-war international organizations. And, as von Lingen argues on a broader canvas:
The transcultural learning system of one of the first international tribunals enabled many of the staff present at Tokyo tolater enrol with the emerging international institutions, especially within the UN. The Tokyo tribunal gave them possibilities to enrich their knowledge on the functioning of large international courts, and form something which could betermed ‘legal flows’, which left its marks on international
criminal courts as we know them today.36

There is further decentring of the idea of prosecution and trial, andan attentiveness to the aftermath (war commemoration, national trials) of
the Trial in the chapter by Trefalt, where she discusses the local audience
for the Trial, an audience subject to a form of re-education through a trial
intended to prepare Japan for re-engagement with the international community. She shows how the Tokyo Trial was very much part of daily life
for Japanese people. As she puts it: “Even the words ‘A-kyū senpan’(Class A war criminal) became widely used to refer to a despised and badly treated individual”.37
Trefalt does a good job showing how the Trial was really two trials
from the perspective of its national audience. The trial at the beginning,when there was anger and resentment directed towards the leading war
criminals (even Tōjō’s botched suicide was held against him), was followed by a ‘later trial’ in which the Class A war criminals were partiallyredeemed through Tōjō’s performance and by which time there had developed a growing suspicion about Allied motives (and a ‘class’ based
resentment about the number of Class B and C prisoners serving out sentences in the absence of clemency).
This all links nicely to von Lingen’s idea of “transcultural justice”38
which specifically thinks of the trial as a cosmopolitan affair with individuals from many different places involved in the production of law andjustice. Her chapter is an exercise in “restoring agency”39 to these people.

36
37
38
39

Von Lingen, chap. 4 below.
Trefalt, chap. 15 below, p. 331.
Ibid.
Ibid., p. 3.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

The Tokyo in these chapters, then, becomes not just a repeated Nuremberg but a much more complicated inter-cultural negotiation and contestation40 involving a plurality of often neglected actors.
2.4. The Hidden Trials
The Trial is more than the trial: it is a network of sometimes hidden legal
norms, administrative procedures, alternative judgments, political decisions, bureaucratic routines, and carceral practices.
The hidden trial closest to the trial itself – indeed sitting at the very
core of it – is Justice Webb’s monumental unpublished draft judgment(found in the Australian National Archive and at the Australian War Memorial in Canberra). Cohen does a terrific job of excavating the significance and meaning of this document, neglected in favour of the judgment
itself and the famous dissents by the likes of Justices Pal and Röling. Cohen begins by remarking that “while Webb agreed with the majority that
all of the defendants should be found guilty, he disagreed with them on
almost everything else”. 41 As Cohen points out, a new legal order designed to place individual responsibility at the centre of international law,
was hobbled from the outset by judges (at Nuremberg, Jerusalem and Tokyo) who were concerned to write sweeping accounts of conspiracies towage war or destroy religious or ethnic groups without adducing evidence
as to who had specifically committed such acts (at Tokyo, for example,
only 5 per cent of the majority judgment is devoted to individual verdicts).
Webb was an exception to this general rule, with his focus on individual
defendants and their individual acts. Clearly, this is not the Webb ofstandard issue international law scholarship (a kind of bumbling, parochial Australian who managed to preside both imperiously and ineffectually).
Like Cohen, Narrelle Morris, who has already done so much usefulwork bringing the Australian war crimes experience to light, focuses on arehearsal of Webb’s contribution to the Tokyo Trial. This is also a reassessment of some myths that have grown up around the dissenting judges(Morris dismissed Pal’s vaunted international law expertise and laments

40
41

Ibid.
Cohen, chap. 12 below, p. 252.

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2. Opening Reflections: Tokyoberg

the fact that none of the other judges were still alive to dispute some of
Röling’s late-century claims about the Trial).42
Webb, in fact, was one of the few judges with any experience in international law-related matters (especially war crimes) and his reputationin Australia (as intelligent, affable, generous) is almost entirely at odds
with his reputation as a judge at Tokyo (domineering, irritable, bluff).
Morris also points how exacting Webb’s role was on his family life
(something that is usually passed over as a private matter). Morris does agood job of rehabilitating Webb, whose style she wants to position as an
Anglo-Australian common-law robustness that may have offended thethin-skinned Americans and others (some of the tenacious assumptions
about Webb can be traced back to John Appleman’s book),43 and whose
complaints about the lack of air-conditioning were not examples of “tetchiness”, but an effort to make sure justice was conducted in workable conditions (see Yoriko Otomo’s work on air-conditioning and internationallaw). It is worth quoting Cohen in full on Webb:
Webb, in his draft judgment, most fully fulfils the role ofjudge who weighs the evidence against each of the accusedin turn on each of the charges against them and provides areasoned decision in each individual case. He spared the majority the embarrassment his draft judgment would havecaused if it had been published as his concurring opinion.
Unfortunately, however, his decision not to adopt it as his
concurring opinion has provided posterity with a very incomplete sense of the evidence before the court that on
Webb’s view justified the convictions of the accused. Webb’s
withdrawal of his comprehensive draft judgment thus enabled Pal, and to a lesser extent Röling, to discredit the trial asa whole in the eyes of many critics.44

But, along with this obscured judgment, the Trial had many hidden
aftermaths. Trefalt shows how an event that both fed on and further exacerbated the polarization of views about the war was the enshrinement ofconvicted war criminals in the Yasukuni Shrine in Tokyo in the mid-1970s(something that had the paradoxical effect of ending the Emperor’s visits
42

43
44

See B.V.A. Röling and Antonio Cassese, The Tokyo Trial and Beyond: Reflections of a
Peacemonger, Polity, Cambridge, 1993.
Appleman, 1954, see above note 3.
Cohen, chap. 12 below, p. 274.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

to the shrine from this point), while Wilson’s chapter, for example,
demonstrates the way in which clemency became a lawful response to war
crimes. As she notes, by the time the IMTFE verdicts were handed down,
thousands of Japanese defendants had already been convicted in the national military tribunals while the prosecution of 5,700 Japanese military
personnel was still ongoing. Meanwhile, convicted prisoners were incarcerated in Tokyo and around Asia and the Pacific.
Around this time, according to Wilson, the United States, the United
Kingdom and their allies began to “soften their stance” on war criminals
as part of a Cold War strategy and in response to agitations from (what wewould now call) non-governmental organisations representing families ofimprisoned war criminals.45 Clemency boards became important parts ofthe post-war international criminal law architecture and became themselves ‘entangled’ in post-colonial politics (the decision to allow Pakistan
to be represented on these boards, the choice of which China should represent the Chinese people, and so on).
The last Japanese war criminals left Sugamo Prison in May 1958,
three weeks after the last German war criminals incarcerated in Landsberg
Prison in Bavaria had been freed. As Wilson points out: despite all the Allied rhetoric about the exceptional nature of Japan’s war crimes, relatively
normal administrative arrangements had overtaken the justice process.
Franziska Seraphim’s richly-textured account of the social post-historiesof the Tokyo Trial takes up this question of carceral geography in her account of the spatial and financial networks of power and legality operatingin the aftermath of the trial – for instance, Gustav Krupp’s and Ryōichi
Sasakawa’s philanthropic activities (some dedicated to the families of
those tried and imprisoned as war criminals). For her, the trials played out
as a continual shaping and reshaping of identity, of social relations and ofhegemonic power across different spaces (procedural, physical and discursive). Seraphim’s chapter, which ends by putting penology, social politics, and carceral practices at the heart of the war crimes programme, is anuanced and original contribution to the literature on the Tokyo Trial, aliterature greatly enhanced by this generous and original anthology.

45

See Sandra Wilson, “The Shifting Politics of Guilt: The Campaign for the Release of Japanese War Criminals”, in Barak Kushner and Sherzod Muminov (eds.), The Dismantling ofJapan’s Empire in East Asia: Deimperialization, Postwar Legitimation and Imperial Afterlife, Routledge, London, 2017, pp. 87-106.

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PART II:FOUNDATIONS AND FACETS OF THE TRIAL

3______The Tokyo and Nuremberg
International Military Tribunal Trials:
A Comparative StudyDavid M. Crowe*3.1. Introduction
The International Military Tribunals in Nuremberg and Tokyo (‘IMT’ and‘IMTFE’ respectively) in the wake of World War II were meant to bring tojustice the principal figures responsible for the most horrendous war inmodern history. This chapter will take a comparative look at the planningfor each trial, and explore Allied efforts to come to grips with the complex
legal issues that faced those responsible for conducting both trials. It will
also discuss the problems that each of the Allied judicial and prosecutorial
teams faced once the trials began. These were the first major war crimes
trials in history, and there were no precedents to guide the judges, theprosecution, and the defence when it came to the conduct of such trials.
Moreover, as the chapter will show, both trials were haunted by theexperiences of the German and Japanese occupation of much of Europe
and East Asia, which created their own set of challenges for the tribunals.
The same was true when it came to the defeat of the Allies and the occupation of Japan and Germany. Though there were serious attempts to conduct both trials fairly, the judges and the prosecutors could not escape themassive population losses, the gruesome nature of German and Japanese
war crimes and, at least for the United States, the attack on Pearl Harbor.
This raised the prospect that a certain element of revenge was at play dur*David M. Crowe is a Presidential Fellow at Chapman University and Professor Emeritusof History and Law at Elon University. His most recent publications include Stalin’s Soviet
Justice: ‘Show’ Trials, War Crimes Trials, and Nuremberg (2019), “The German Plunder
and Theft of Jewish Property in the General Government”, in Nazi Law: From Nuremberg
to Nuremberg (2019), “Pearl Buck, Raphael Lemkin, and the Struggle for the Genocide
Convention”, in Beyond ‘The Good Earth’: Transnational Perspectives on Pearl S. Buck(2019), and “MacArthur, Keenan, and the American Quest for Justice at IMFTE”, inTranscultural Justice: The Tokyo IMT Trial and the Allied Struggle for Justice (2018). He
is currently writing Raphael Lemkin: The Life of a Visionary.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

ing both trials, particularly in Tokyo, which raised the question of ‘victor’s justice’.
3.2. Background3.2.1. The Tokyo Trial
From the moment of his appointment as the Supreme Allied Commander,South West Pacific Area, General Douglas MacArthur had already, as helater recalled:formulated the policies I intended to follow, implementing
them through the Emperor and the machinery of the imperial
government. I was thoroughly familiar with Japanese administration, its weaknesses and its strengths, and felt the reform
I contemplated were those which would bring Japan abreastof modern progressive thought and action. First destroy the
military power. Punish war criminals. Build the structure of
representative government.1

Yet, it would be wrong to think that MacArthur was the principal architectof the American occupation of Japan, including the trial of Japan’s major
war criminals. Many of the policies that MacArthur adopted, particularlyin the early years of the occupation, were dictated by Washington. Thiswas certainly the case with the planning of the IMTFE and the decision
not to indict Emperor Hirohito as a war criminal.
The Japanese attack on Pearl Harbor on 7 December 1941 andGermany’s declaration of war on the United States four days later caught
the Allied powers by surprise, and led them to hold the Inter-Allied Conference (later, Commission) on the Punishment of War Crimes in London
one month later, on 13 January 1942. There, they issued the Inter-Allied
Declaration at St. James’s Palace (to be distinguished from the eponymous Declaration of June 1941), which, referencing the 1907 Hague Convention IV (Convention Respecting the Laws and Customs of War onLand), stated that the Allied powers opposed retribution “by acts ofvengeance on the part of the general public” when it came to the issue ofwar crimes. Noting that “international solidarity is necessary […] in orderto satisfy the sense of justice of the civilized world”, the nine occupied
countries:

1

Douglas MacArthur, Reminiscences, McGraw Hill, New York, 1964, pp. 282-83.

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Study

1. affirm that acts of violence thus inflicted upon the civilian populations have nothing in common with the conception of an act of war or a political crime as understoodby civilised nations,
2. take note of the declarations made in this respect on 25th
October 1941 by the President of the United States ofAmerica and by the British Prime Minister [in separate
statements, Roosevelt and Churchill warned Germany
that it would face “retribution” for its crimes in Nazioccupied Europe],
3. place among their principal war aims the punishment,
through the channel of organised justice, of those guiltyof or responsible for these crimes, whether they have ordered them, perpetuated them or participated in them,
4. resolve to see to it in a spirit of international solidarity,that (a) those guilty or responsible, whatever their nationality, are sought out, handed over to justice and judged, (b)that the sentences produced are carried out.2

A year and nine months later, in October 1943, the Allied powers
created the United Nations War Crimes Commission (‘UNWCC’), which
would be responsible for developing policies to deal with the “detection,
apprehension, trial and punishment of persons accused of war crimes”.3
At the Inter-Allied Conference in January 1942, KING Wunsz (alsoknown as KING Wenz, CHIN Wen-szu and JIN Wensi), the Republic ofChina’s delegate, told other members that his country fully embraced the
Declaration’s ideals and “intended to apply the same principles to the Japanese occupying authorities in China when the time came”.4 Given the‘Europe-first’ focus of the Allied powers, it is not surprising that it took a2

3

4Inter-Allied Information Committee, Punishment for War Crimes: The Inter-Allied Declaration Signed at St. James’s Palace, London on 13th January, 1942 and Relative Documents, His Majesty’s Stationery Office, London (‘HMSO’), July 1942. See also the United
Nations War Crimes Commission (‘UNWCC’), History of the United Nations War Crimes
Commission and the Development of the Laws of War, HMSO, 1948, pp. 91-92, 105, 10911 (https://www.legal-tools.org/doc/cac045/); Division of International Law of the Carnegie Endowment for International Peace (under the supervision of its director, James Brown
Scott), The Proceedings of the Hague Peace Conferences: Translation of the Official Texts.
The Conference of 1907, Oxford University Press, New York, 1920, pp. 87-88, 626-31.
United Nations Archives and Records Management Section, Summary of AG-042 United
Nations War Crimes Commission (UNWCC) 1943-1948, p. 1.
UNWCC, 1948, p. 91, see above note 2.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

while before they first warned Japan about its war crimes in Asia. On 1
November 1943, two days after the Moscow Conference ended, a Declaration on German Atrocities by Winston Churchill, Joseph Stalin andFranklin Roosevelt was adopted, which promised that they would go to
the ends of the earth to find “Hitlerite Huns” who had committed “monstrous crimes”. Such criminals would be “judged on the spot by the peoples whom they have outraged”.5 A few weeks later, Roosevelt, Churchill
and CHIANG Kaishek issued the Cairo Declaration, which stated thatthey were “fighting this war to restrain and punish the aggression of Japan”. The United Nations, it warned, would do whatever was militarily“necessary to procure the unconditional surrender of Japan”.6
Many of the Allied nations in Europe and the Asia-Pacific region
established independent investigatory bodies to work and share evidenceof Axis war crimes with the UNWCC. In China, CHIANG’s Nationalist
government focused their investigative efforts on hanjian, an ancient termthat the 1937 Regulations on Punishing Hanjian (‘Chengzhi hanjian
tiaoli’) applied to anyone who collaborated with the Japanese.7 The Australian government created three major commissions of inquiry to investigate Japanese war crimes, all led by Sir William Webb, the Chief Justiceof Queensland who would later become President of the IMTFE.8 On theother hand, Stalin created his own investigative body, the Extraordinary
State Commission for Ascertaining and Investigating Atrocities Perpetrated by the German Fascist Invaders and Their Accomplices (‘Chrezvychainaia gosudarstvennaia kommissiia’; ‘ChGK’), and refused to work with
the UNWCC.9

5

6

7

8

9

Franklin D. Roosevelt, Winston Churchill and Joseph Stalin, Moscow Declaration on
German Atrocities, Annex 10 to Secret Protocol, Moscow Conference of Foreign Secretaries, signed 30 October 1943, adopted 1 November 1943 (https://www.legal-tools.org/doc/
3c6e23/).
Franklin D. Roosevelt, CHIANG Kaishek, and Winston Churchill, “The Cairo Declaration”, 26 November 1943.
XIA Yun, Down with Traitors: Justice and Nationalism in Wartime China, University ofWashington Press, 2017, pp. 22-25; David M. Crowe, War Crimes, Genocide, and Justice:
A Global History, Palgrave Macmillan, London, 2014, pp. 265-66.
D.C.S. Sissons, “The Australian War Crimes Trials and Investigations (1942-51)”, pp. 410 (available on UC Berkeley’s web site).
Marina Sorokina, “People and Procedures: Toward a History of the Investigation of Nazi
Crimes in the USSR”, in Kritika: Explorations in Russian and Eurasian History, 2005, vol.
6, no. 4, pp. 801-06; Alexander Victor Prusin, “‘Fascist Criminals to the Gallows!’: The

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative StudyIn the 1920s and 1930s, Stalin oversaw the creation of a body ofcriminal law that gave the State extraordinary powers to prosecute anyone
for what was perceived to be anti-Soviet and anti-Stalinist crimes. Whatfollowed were a series of ‘show’ trials that established important precedents that Stalin used in criminal proceedings during the Great Fatherland
War (1941–45) against alleged collaborators and Axis war criminals. His
refusal to join the UNWCC was driven by the fear that such membershipwould restrict his ability to conduct a-legal trials designed principally tohighlight the sacrifices being made by the Soviet people to defeat the hated ‘fascists’.10
3.2.2. The Nuremberg Trial
In the US, the planning for war crimes trials was part of the larger discussions about the defeat and occupation of Germany and Japan. The War
and State Departments created separate teams of specialists to study theseissues. In August 1944, the experts prepared a memorandum entitled“General Objective of United States Economic Policy with Respect toGermany”. It argued that the Allies should learn from the lessons of Versailles and avoid the breakup of Germany because of its impact on Europe’s economy and the possible resurgence of German nationalism. It
also suggested that German industry should be restored to ensure “a minimum prescribed standard of living” which would enhance its ability to
pay reparations and restitutions.11
The War Department also issued a handbook to guide field commanders who were about to move into Germany, which dealt with three
aspects of the occupation:
1. possible conditions in Germany and the essentials of military government;
2. the 12 functions of an occupation, including “food, finance, and education and religion”; and1011

Holocaust and Soviet War Crimes Trials, December 1945–February 1946”, in Holocaust
and Genocide Studies, 2003, vol. 17, no. 1, p. 3.
David M. Crowe, “Introduction”, in David M. Crowe (ed.), Stalin’s Soviet Justice: ‘Show’
Trials, War Crimes Trials, and Nuremberg, Bloomsbury, 2019, p. 6.
United States Department of State, Foreign Relations of the United States Diplomatic Papers, 1944. General, Volume I, US Government Printing Office, 1966, p. 291, see also pp.
284, 285-87, 288, 295.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

3. various ordinances and laws that would “constitute the legal bond between the Germans and military government”.12
The handbook would also be used by the US as a blueprint for the planning of the occupation of Japan.
Hans Morgenthau, Roosevelt’s Treasury Secretary and one of his
most trusted advisers, received a copy of the handbook, and was stunned
by what he read, particularly when it came to what he saw as a liberalprogramme of German “economic rehabilitation”.13 He wrote to the President about his concerns and told Henry Stimson, the Secretary of War,not to release the handbook because it gave him “the impression that
Germany is to be restored just as much as the Netherlands or Belgium,and the people of Germany brought back as quickly as possible to theirpre-war estate”.14
Morgenthau drew up his own occupation plan – “Suggested PostSurrender Program for Germany” 15 – that he wanted Roosevelt andChurchill to consider at the Quebec Conference in mid-September 1944.
If adopted, it would have transformed Germany into “‘a primarily pastoral
community’ too weak to threaten Europe and the world”.16 The War andState Departments voiced strong objections to it, particularly Stimson,
who thought it would do nothing to “prevent war” and might even “breedit”.17 Though Churchill initially accepted the Morgenthau plan, both leaders soon backed away from it when it was leaked to the press.18
12

13
14

15

16

17
18

Earl F. Ziemke, The U.S. Army and the Occupation of Germany, 1944–1946, Center of
Military History, US Army, Washington, D.C., 1975, vol. 3, pp. 83-84. See also UnitedStates Army and Navy Manual of Military Government and Civil Affairs, War Department,
22 December 1943, FM 27-5, pp. 6-7.
Ziemke, 1975, pp. 87-88, see above note 12.
Quoted in Roger Daniels, Franklin Roosevelt: The War Years, 1939-1945, University of
Illinois Press, 2016, p. 421.
United States Department of State, Foreign Relations of the United States, Conference at
Quebec, 1944, US Government Printing Office, 1972, pp. 101-08.
Roy Jenkins, Churchill: A Biography, Farrar, Straus, and Giroux, 2001, p. 754; Herbert
Levy, Henry Morgenthau, Jr.: The Remarkable Life of FDR’s Secretary of the Treasury,
Skyhorse, New York, 2010, pp. 381-94.
United States Department of State, 1972, pp. 94-95, 100, see above note 15.
David B. Woolner, “Coming to Grips with the ‘German Problem’: Roosevelt, Churchill
and the Morgenthau Plan at the Second Quebec Conference”, in David B. Woolner (ed.),The Second Quebec Conference Revisited: Waging War, Formulating Peace: Canada,
Great Britain, and the United States in 1944-1945, St. Martin’s Press, New York, 1998, pp.
85-89.

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The Morgenthau plan also suggested that the UN draw up a “list of
the arch-criminals of this war whose obvious guilt has generally been recognized” and arrest them. Once they were properly identified, they should
be executed by “firing squads”. It also argued that other German criminals
should be tried by Allied military commissions, while all members of the
SS (‘Schutzstaffel’), the Gestapo (‘Geheime Staatspolizei’), “high officialsof the police, S.A. [‘Schutzabteilung’], and other security organizations”,“high Government and Nazi Party officials” as well as all other “leading
public figures closely identified with Nazism” should be detained until
their guilt could be determined.19
Stalin had already begun aggressively to conduct ‘show’ trials of
collaborators and Germans that were more political theatres than true legal proceedings. Several weeks after the Big Three issued the Moscow
Declaration on Atrocities, Stalin suggested at a dinner in Tehran that the“German General Staff […] be liquidated”. When Churchill questioned
him about this, the Soviet leader replied that “fifty thousand must be shot”.
Roosevelt, trying to lighten the mood, suggested they only shoot 49,000.
Churchill stormed out of the room in anger, followed by Stalin who told
him “they were playing” and had no intention of doing this.20
Churchill and Stalin discussed the question of war crimes trials inlate 1944. The Soviet leader supported the idea out of fear that their critics
would argue that the Allies were afraid to conduct such trials. More importantly, he thought such proceedings would be a way to show the world
the sacrifices made by the Soviet military and people during the war.21
A few months earlier, Colonel Murray C. Bernays, a member of the
US Army’s Deputy Chief of Staff (as known as ‘G-1’), wrote a memorandum that dealt with the prosecution of German war criminals. He opposed
the summary executions of Nazi leaders because this would violate thevery principles that had driven the UN to take up arms, and could lead tothe “martyrdom of Nazi leaders like Hitler”. However, he also thought theGerman people should have to face the guilt of their leaders as well as“their responsibility for the crimes committed by their government”. He
proposed that an international court charge various groups such as the Nazi party, the German government, the SS, the SA, the Gestapo and so on
19
20
21

United States Department of State, 1972, pp. 105-07, see above note 15.
Ibid., p. 154.
Ibid., pp. 92, 466-67; Crowe, 2014, pp. 155-56, see above note 7.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

with conspiracy to commit murder, terrorism and the destruction of peaceful populations in violation of the laws of war.22
Bernays argued that the evidence used in these trials should be sufficient to prove the criminal intent of these organizations so that individual members could be held accountable for criminal acts other than conspiracy. He was aware that the use of the charge of conspiracy in an international criminal trial would be controversial, and noted that Aron Trainin,
a Soviet jurist, had recently argued in The Criminal Responsibility of the
Hitlerites that the charge of complicity, which was similar to conspiracy,
should be used in war crimes indictments.23
Bernays’ memorandum went through several revisions as it passed
through the State and Justice Departments, but remained the nucleus of
the US “Trial and Punishment of European War Criminals”, which was
released in early 1945 to help America’s allies think more seriously aboutplans to conduct trials of major German war criminals.24
3.2.3. The London Conference
For the next few months, the question of war crimes trials remained unsettled. However, just before his death on 20 April 1945, President Roosevelt
sent Judge Samuel Rosenman to London to discuss the issue with the
British and the French. While both governments still seemed to favour
summary executions,25 the British War Cabinet had already concluded thatfor the principal Nazi leaders a full trial under judicial review was not outof the question. President Truman opposed the idea of summary executions, and in early May 1945, the British War Cabinet hesitantly agreed tosupport war crimes trials.26 At the same time, Truman appointed US Supreme Court Justice Robert H. Jackson to be US Chief Counsel for the

22

23

24

25

26

Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, Little, Brown
and Co., Boston, 1992, pp. 35-36.
Ibid.; A.N. Trainin, Criminal Responsibility of the Hitlerities, Legal Publishing House,
Moscow, 1944, pp. 109-17.
Crowe, 2014, pp. 158-59, see above note 7; International Conference on Military Trials,“Memorandum for the President: Trial and Punishment of Nazi War Criminals”, Yale Law
School, The Avalon Project, 22 January 1945, pp. 1-12 (available on the university’s website).
Samuel B. Hand, Counsel and Advise: A Political Biography of Samuel I. Rosenman, Garland, New York, 1979, pp. 196-97.
Taylor, 1992, pp. 32-33, see above note 22.

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trials. In Jackson’s view, the trials had to adhere to a code of judicial fairness.
The ultimate principle is that you must put no man on trial
under the forms of judicial proceedings if you are not willingto see him freed if not proven guilty. If you are determined to
execute a man in any case, there is no occasion for a trial.27

Jackson moved his team to London in June 1945 to work with the
UNWCC and the other major powers to plan for the trials.28 A month earlier, the US presented the British, the French and the Soviets with a draft
agreement for the conduct of such trials at the UN Conference in San
Francisco.29 The principal charge dealt with crimes committed while waging a war of aggression. It stated that those countries that chose to adhere
to the agreement had
the right to charge and try defendants under this Agreement
for violations of law other than those recited above (six werecited in the Declaration of Criminal Acts), including but notlimited to atrocities and crimes committed in violation of thedomestic law of any Axis Power or satellite or of any of theUnited Nations.30

It also laid out some key ideas about the conduct of the trials, which
would be undertaken by Big Four military tribunals. It further stated thatthe guilt or innocence of Nazi Germany’s leaders, their associates, andtheir principal organizations such as the SS and the Gestapo should bedetermined by the “judicial action of a military tribunal and not by political action of the Allied Governments”. The alleged guilt of such leaders
and their organizations should be based on their “voluntarily participation
in a common criminal enterprise” which resulted in “Axis atrocities andwar crimes”.31

27

28
29

30
31

Robert H. Jackson, “The Rule of Law Among Nations”, in American Bar Association
Journal, 1945, vol. 19, pp. 140-41. This is the speech made by Justice Jackson before theAmerican Society of International Law on 13 April 1945.
Crowe, 2014, pp. 245-49, 253-54, see above note 7.
United States Department of State, Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, US Government Printing Office,Washington, DC, 1949, p. 22.
Ibid., p. 24.
Ibid., pp. 29-30.

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The British suggested some modest changes to the American draft.
On 6 June 1945, Jackson wrote to Truman that the US and the UK were
working closely together, while France agreed “in principle” with the“American proposals”.32 On the other hand, the Soviets initially refused torespond to invitations to take part in the talks in London. Regardless,Jackson insisted that the UK, France and the US move forward with thediscussions. In his 6 June 1945 report to President Truman, Jackson argued that the cases against major German war criminals
must be factually authentic and constitute a well-documented
history of what we are convinced was a grand, concerted pattern to incite and commit the aggressions and barbarities
which have shocked the world.33

The trials, he concluded, would revolve around the “crime which comprehends all lesser crimes […] the crime of making unjustifiable war”.34
In the meantime, the Soviets finally agreed to join the talks, and on
26 June 1945, the Big Four International Conference on Military Trials
opened in London. The heads of each delegation – Robert Falco (France),
Sir David Maxwell Fyfe (UK), General I.T. Nikitchenko (Soviet Union),and Robert Jackson (US) – would also play prominent roles in the Nuremberg Trial.35 The discussions were intense but friendly. Many of thedifferences centred on certain Anglo-American and continental legal concepts, particularly the presentation of evidence, conspiracy and the trial oforganizations. In addition to translation and interpretative issues, the Soviets struggled with terms like ‘prosecutor’ and their role in issuing an
indictment. There were also differences about the location of the Allied
Control Council and the trial.36 Many of the issues raised by the Soviets
were a reflection of their lack of knowledge regarding the basics of Western legal concepts, traditions and practices. The Soviet delegation was
further handicapped by the fact that Stalin and his legal mouthpiece, An-

32
33
34
35
36

Ibid., pp. 44-46.
Ibid., p. 48.
Ibid., p. 51.
Ibid., p. 441.
Ibid., pp. 71-85, 129-54, 259-79, 291-311, 327-59; Whitney Harris, Tyranny on Trial: The
Trial of the Major German War Criminals at the End of World War II at Nuremberg,
Germany, 1945-1946, Southern Methodist University Press, Texas, 1999, pp. 11-22; Taylor, 1992, pp. 59-67, see above note 22.

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drei Vyshinsky, micromanaged every aspect of the Soviet interaction withthe other delegations.37
Jackson, who was frustrated with the problems created by what hesaw as Soviet intransigence, flew to Potsdam at the end of July 1945 todiscuss this with American officials. He was told to find a way to reach acompromise with the Soviets as long as it did not “derogate from the fundamental axioms of justice”.38 At this point, Sir William Jowitt, the new
British Lord Chancellor, stepped in, and arranged for new meetings in
London with the four delegations, which led to fresh talks. On 8 August
1945, Falco, Jackson, Jowitt, Nikitchenko and Trainin signed the Nuremberg Agreement and Charter which included the Charter of the IMT.
These documents would guide not only the prosecution of war criminals
at Nuremberg, but also in Tokyo.39
The Charter gave the IMT the authority to try and punish individuals from former Axis countries for crimes against peace, war crimes,
crimes against humanity, as well as individuals involved in a common
plan or conspiracy to commit such crimes. It could also declare any group
to be a criminal organization if any of those under indictment belonged tosuch a group. Each of the signatory nations would appoint a Chief Prosecutor who would be part of a committee that would decide on whom toindict, approve the indictment, and draft the rules of procedure for the trial.
Each nation sitting in judgment would appoint a judge and an alternate toserve on the tribunal. Decisions by the judges were to be by majority vote,though in the case of a tie the vote of the court’s President would “be decisive”. Defendants were to be afforded complete “fair trial” rights which
included the translation of documents into German, an attorney of his own
choosing, the presentation of documents to strengthen his case, and theright to cross-examine witnesses.40
The tribunal was to follow legal norms common to most Western
criminal trials. It was also to conduct an “expeditious hearing of the issues
37

38
39
40

Irina Schulmeister-André and David M. Crowe, “‘May Justice be Done’: The Soviet Union and the London Conference (1945)”, in Crowe, 2019, pp. 161-62, see above note 10;
for a detailed study of the role of the Soviets at Nuremberg, see Irina Schulmeister-André,Internationale Strafgerichtsbarkeit unter sowjestischem Einfluss: Der Beitrag der UdSSR
zum Nürnberger Hauptkriegsverbrechersprozess, Duncker & Humbolt, Berlin, 2016.
Taylor, 1992, p. 68, see above note 22.
Report of Robert H. Jackson, pp. 398-421, see above note 29.
Ibid., pp. 425-26.

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raised by the charges” and prevent any actions in the courtroom thatwould “cause unreasonable” delays. It was not to be bound by “technicalrules of evidence” and the tribunal had the right to review any evidence
before it was presented in court to determine its relevance to the proceedings. The final portions of the Charter provided an outline for the conductof the trial from beginning to end, with separate articles on the judgment
and sentence.41
3.3. Proceedings
3.3.1. The Nuremberg Trial
Work on the indictment began in mid-August 1945.42 It included one offour criminal charges against each of the 24 defendants as well as the Nazi Party, the SS, the SD (‘Sicherheitsdienst’), the Gestapo, the SA, and theprincipal German military leadership organizations. The trial opened in
Berlin on 18 October 1945 with the reading of the indictment, and resumed a month later in Nuremberg. The US and the UK played the leading role in the trial, though some of the most dramatic evidence was introduced by the Soviet prosecutors. This included shocking US and Soviet
films on the worst of German abuses in death and concentration camps.
The trial, which most thought would only last a few months, took much
longer, not only because of the large body of fresh evidence flowing into
Nuremberg, but also because of the need to translate it into the tribunal’s
four official languages. This put the defence attorneys, who were understaffed and overwhelmed by these problems, at a disadvantage throughout
the trial. The prosecutors were also handicapped by their lack ofknowledge of continental law, the German language, and Nazi Germany’s
complex political and military system.43 But as the trial progressed, theoverwhelming body of evidence proved to be more than enough to findmost of the defendants guilty of many of the crimes in the indictment.44

41
42

43

44

Ibid., pp. 426-28.
Ann Tusa and John Tusa, The Nuremberg Trial, Skyhorse, 2010, p. 108; Taylor, 1992, pp.
113-15, see above note 22; Office of United States Chief of Counsel for Prosecution of
Axis Criminality, Nazi Conspiracy and Aggression: Opinion and Judgement, US Government Printing Office, 1947, pp. 105-06 (‘Nazi Conspiracy’).
Taylor, 1992, pp. 173-77, 203, see above note 22; Bradley F. Smith, Reaching Judgement
at Nuremberg, Basic Books, 1977, pp. 82-86.
Taylor, 1992, p. 306, see above note 22.

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The prosecution divided the trial into four parts. The Americans
opened with the overall charge of waging aggressive war, while the British dealt with crimes against humanity and, on occasion, joined the Americans in their cases against individual defendants. The French were responsible for war crimes and crimes against humanity in Western Europe,
while the Soviets dealt with crimes against humanity in Eastern Europe
and the Soviet Union. The prosecution finished its cases on 4 March 1946,
followed by the defence cases, which ended on 25 July 1946.45
This was followed by the cases against the various Nazi organizations from mid to late August. On 31 August 1946, each defendant wasgiven the opportunity to make a statement, and from 30 September to 1
October 1946, the judges read the judgments. 46 When they began theirdeliberations, the judges decided, against Soviet objections, that a tie votewould mean acquittal. Somehow, the judges found a way to finesse embarrassing issues like the Munich Accord, Stalin’s two-year accord withHitler, the Soviet invasion of Poland, the Katyn massacres in 1940, andFrench collaboration. In the end, after considerable disagreements, thejudges sentenced 12 of the defendants to death, 3 to life, 4 to prison termsof 10–20 years, and acquitted 3 of all charges.47 They declared the Leadership Corps of the Nazi Party, the Gestapo, the SD, and the SS to becriminal organizations, and stated:
A member of an organization which the Tribunal has declared to be criminal may be subsequently convicted of the

45

46

47

Crowe, 2014, see above note 7; International Military Tribunal, Trial of the Major War
Criminals Before the International Military Tribunal, Nuremberg 14 November 1945-1
October 1946, 1947-1949, vol. 9, pp. 1-234 (available in various volumes in the ICC Legal
Tools Database); David Patrick Maxwell Fyfe Kilmuir, Political Adventure: The Memoirsof the Earl of Kilmuir, Weidenfeld and Nicolson, 1964, p. 112; Francis Biddle, In Brief
Authority, Doubleday, 1962, pp. 409-10; Taylor, 1992, pp. 238-39, see above note 22;
Tusa and Tusa, 2010, pp. 270-71, see above note 42.
Lord Justice Col. Sir Geoffrey Lawrence from the United Kingdom served as the court’s
president, and Sir Norman Birkett, his alternate. Professor Henri Donnedieu de Vabres wasFrance’s judge, with Robert Falco, his alternate. Major Gen. Iona Nikitchenko was the Soviet judge, and Lt. Col. Alexander Volchkov, his alternate. Francis Biddle was the American judge with John J. Parker, his alternate. All eight judges were in attendance throughout
the trial. The alternates could take part in discussions about the trial but had no voting
rights.
Crowe, 2014, pp. 190-92, see above note 7.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

crime of membership and be punished for that crime bydeath.48

Once the sentences were announced, Nikitchenko read his dissenting opinion on the acquittal of Schacht, von Papen and Fritzsche, and thedecisions on Hess, the Reich Cabinet, the General Staff, and the OKW(‘Oberkommando der Wehrmacht’).49 This was fully expected, as Stalin
thought all of the defendants should be found guilty and shot, and that allof the accused groups should be declared criminal organizations.
Such objections did little to detract from the importance of the Nuremberg Trial, which remains one of the most important legal undertakings in history. Its precedents remain a cornerstone of international criminal law, and were enshrined in the UN General Assembly’s 1946 Resolution 95 (I). The resolution affirmed the legal principles of the IMT Charterand judgment, and called for the creation of an international criminal code
based on these precedents. Four years later, the UN’s new International
Law Commission went a step further and adopted the Nuremberg Principles, which were also drawn from the Charter and judgment. The sevenprinciples began with statements on individual responsibility for criminal
violations under international law. Principle VI declared that all four of
the indictable war crimes laid out in the Nuremberg Charter were crimes
under international law, while Principle VII declared that complicity, alegal concept developed by Vishinsky and Trainin, was also a crime underinternational criminal law.50 These principles would later be cited in thedecisions of the International Criminal Tribunal for the former Yugoslavia
and the International Criminal Tribunal for Rwanda. They can also be

48
49
50

Nazi Conspiracy, pp. 85, 87-102, see above note 42.
Ibid., pp. 166-88.
Antonio Cassese, “Affirmation of the Principles of International Law recognized by theCharter of the Nürnberg Tribunal General Assembly resolution 95 (I)”, in United Nations
Audiovisual Library of International Law, 2009, pp. 1-5 (available on the Library’s website); International Law Commission, “Principles of International Law Recognized in theCharter of the Nürnberg Tribunal and in the Judgment of the Tribunal”, in Yearbook of theInternational Law Commission, 1950, vol. 2, para. 97 (https://www.legal-tools.org/doc/
5164a6/); Valentyna Polunina, “The Human Face of Soviet Justice? Aron Trainin and theOrigins of the Soviet Doctrine of International Criminal Law”, in Crowe, 2019, pp. 131-32,
see above note 10; see also Trainin, 1944, pp. 109-18, see above note 23; Vyshinsky introduced the charge of complicity in his closing remarks in the last of the major Moscow‘show’ trials in 1938. David M. Crowe, “Late Imperial and Soviet ‘Show’ Trials, 18781938”, in Crowe, 2019, pp. 64-65, see above note 10.

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Study

found in the Rome Statute, which gave birth to the permanent International Criminal Court.
3.3.2. The Tokyo Trial
The decisions of the IMTFE never came to enjoy the importance and prestige of the Nuremberg Tribunal, and was, quite erroneously, seen by someas an exercise in post-war ‘victor’s justice’. Like Nuremberg, planning for
the Tokyo Trial was part of larger efforts to develop the US’s occupation
policy for Japan. In early 1943, the State Department created an Interdivisional Area Committee on the Far East to study occupation policies. A
year later, the US created the State-War-Navy Coordinating Committee(‘SWNCC’) to oversee the development and implementation of suchplans. Among its earliest documents was the Instrument of Surrender andPolitical-Military Problems in the Far East: United States Initial Postdefeat Policy Relating to Japan (SWNCC/150/4; 22 September 1945).51
According to James Forrestal, the Secretary of the Navy, no one in
the SWNCC wanted to “hand Morgenthau these islands”, nor subjugate
them in any way, which raised questions about what exactly the US meant
when it demanded Japan’s “unconditional surrender”. The Potsdam Proclamation of 26 July 1945 clarified this and stated that, though the Allies
expected Japan’s unconditional surrender, they also pledged to follow
SWNCC’s proposals about removing
all obstacles to the revival and strengthening of democratic
tendencies of the Japanese people. Freedom of speech, of religion, and thought, as well as respect of fundamental humanrights shall be established.

The proclamation did not mention anything about the possible indictment of Emperor Hirohito for war crimes, topics that the SWNCC had
been discussing for some time.52 This was a question that haunted Allied
prosecutors in the fall of 1945 as they began discussions about the trial.

51

52

Ian Toll, Pacific Crucible: War at Sea in the Pacific, 1941-1942, W.W. Norton & Company, New York, 2012, pp. 43-45, 59, 374, 478-79; Hugh Bolton, “Preparation for the Occupation of Japan”, in Journal of Asian Studies, 1996, vol. 25, no. 2, pp. 203-05.
Michael Neiberg, Potsdam: The End of World War II and the Remaking of Europe, Basic
Books, 2015, p. 238; Crowe, 2014, p. 154, see above note 7; Neil Boister and Robert Cryer(eds.), Documents on the Tokyo International Military Tribunal: Charter, Indictment andJudgments, Oxford University Press, 2008, pp. 1-2.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Hugh Bolton, who prepared a report on this question for the State
Department, suggested that theimperial family be placed under protective custody but theEmperor be given access to his advisers. Furthermore, heshould delegate to his subordinates the carrying out of theiradministrative duties so the occupation forces would be able
to use the maximum number of Japanese officials. If thisplan is impracticable, then the occupying authorities could
suspend all of the functions of the Emperor.53

SWNCC/150/4 supported this approach and strongly recommended
that MacArthur follow this moderate path when dealing with Hirohito.54
MacArthur agreed, and concluded that the Emperor was an important figurehead in the Japanese consciousness. He also feared that if the Emperor
was tried, convicted and hanged as a war criminal, a guerrilla war would
probably break out that would require “at least one million reinforcements
should such action be taken”.55
The SWNCC also sent MacArthur several directives in September
1945 that dealt with the question of war criminals. The first simply told
him that anyone accused of being a war criminal was to be arrested, triedand convicted of such crimes.56 Later that month, it sent him more precise
guidelines for dealing with this issue: “Identification, Apprehension and
Trial of Persons Suspected of War Crimes”. It ordered MacArthur not totake any action against the Emperor until he received special instructions
from Washington. It also gave MacArthur the power to create special
military courts and their rules of procedure.57
If MacArthur had any doubts about how to deal with Hirohito, they
disappeared after his meeting with him on 22 September 1945. He later
53
54

55
56

57

Bolton, 1996, p. 205, see above note 51.
Noah Berlin, “Constitutional Conflict with the Japanese Imperial Role: Accession, Yasukuni Shrine, and Obligatory Reformation”, in Journal of Constitutional Law, 1998, vol.
1, no. 2, p. 391.
MacArthur, 1964, pp. 279-80, see above note 1.
State-War-Navy Coordinating Committee, “Political-Military Priorities in the Far East:
United States Initial Post-Defeat Policy Relating of Japan”, National Diet Library Digital
Collections, SWNCC 150/3, 22 August 1945, p. 6 (available on the official web site of the
Library).
Douglas MacArthur Archives, SWNCC, RG 9, Box 159, Folder, ‘War Crimes, Sept. 45June 46’, “Identification, Apprehension and Trial of Persons Suspected of War Crimes”,
22 September 1945, pp. 1-2.

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wrote that the Emperor took full responsibility for the political and military decisions made during the war, and saw himself simply as a constitutional monarch. John Dower sees this more as an “ornamental version” ofwhat was actually said during the meeting, though whatever took placeestablished the basis for a strong relationship between both men.58
This, however, did not deter MacArthur from proposing the trial ofJapan’s wartime cabinet, led by Hideki Tōjō, for the murder of Americans
at Pearl Harbor. The White House rejected this idea, and prompted MacArthur, who was determined to assert his authority to conduct such proceedings, to order the trial of General Tomoyuki Yamashita and General
Masaharu Honma [Homma], who had played prominent roles in the conquest and occupation of the Philippines.59 MacArthur, who had been driven from the Philippines in 1942, later wrote that the “bitter memories andheartaches [of those losses and tragedies] will never leave me”.60
What followed were two trials in Manila in late 1945 (Yamashita)
and early 1946 (Honma) that were widely criticized for their unfairness.
Robert Shaplen, a reporter for Newsweek who attended the Yamashita trial,
wrote that most of the reporters in the courtroom were convinced thatYamashita’s fate was decided before the trial began. Both Yamashita andHomma were convicted and sentenced to death, decisions that were appealed to the US Supreme Court. Though the majority of the justices concurred with them, Justices Wiley Rutledge and Frank Murphy concluded
that both trials failed to guarantee Yamashita and Honma their most basic
due process rights. Moreover, both defendants were charged with thecrime of command responsibility which, according to Gary Solis, had noprecedent in US military law at the time. MacArthur, who had the final
say in these trials, considered them just and fair.61
58

59

60
61

Berlin, 1998, p. 395, see above note 54; MacArthur, 1964, pp. 287-288, see above note 1;
John W. Dower, Embracing Defeat: Japan in the Wake of World War II, W.W. Norton &Company, 1999, pp. 295-96; D. Clayton James, The Years of MacArthur. Volume III: Triumph and Disaster, 1945–1964, Houghton Mifflin, Boston, 1985, vol. 3, p. 322.
MacArthur Archives, RG9, Box 159, Folder ‘War Crimes, Sept. 45-June 46’, “MacArthur
to WARCOS”, 7 October 1945, p. 1; ibid., Washington to CINCAFPAC [MacArthur], 11
October 1945, p. 1.
MacArthur, 1964, p. 146, see above note 1.
UNWCC, Law Reports of Trials of War Criminals, 1948, vol. 4, pp. 3-4, 37-63 (https://www.legal-tools.org/doc/2cfea3/); Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, 2010, p. 383; Peter Maguire,
Law and War: International Law and American History, Columbia University Press, 2010,

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The Tokyo Tribunal: Perspectives on Law, History and Memory

While MacArthur was planning the trials in Manila, President Truman appointed Joseph B. Keenan, a seasoned criminal lawyer who
worked as a ‘crime buster’ under J. Edgar Hoover and was close to President Roosevelt, to be the IMTFE’s Chief Prosecutor.62 Though MacArthur
was worried that Keenan might undercut the work of Colonel Alva C.
Carpenter, who was already planning Class B and C trials, he was reassured by Secretary of War Robert P. Patterson that Keenan was fully under
MacArthur’s command and would only be handling Class A war criminals.63 All of the defendants in the Tokyo Trial were charged with crimes
against peace, while the Class B and C charges were reserved for national
trials of defendants who had committed conventional war crimes andcrimes against humanity.64 Keenan, who was already fearful of runningafoul of MacArthur, was in full agreement with this. Over time, MacArthur and Keenan established a strong personal relationship, particularly as
criticism of the Tokyo Trial intensified over the next few years.65
From the outset, planning for the Tokyo Tribunal faced a number ofdaunting problems that were never fully overcome. For one, MacArthur
was determined to dominate the proceedings from start to finish, though
in 1946, some prosecutors rebelled and forced him to take a less controlling role when it came to the trial. Nevertheless, MacArthur did everything possible to ensure that the Far Eastern Commission, the Allied body

62

63

64

65

p. 107; Hampton Sides, “The Trial of General Homma”, in American Heritage, February/
March 2007, vol. 58, no. 1, pp. 2, 17-19.
Papers of Joseph B. Keenan (‘Keenan Papers’), “Joseph B. Keenan Biography”, Harvard
University, Box 2, n.d., pp. 1-8.
The idea for Class A, B and C trials first came up in late 1944, as part of the War Department’s discussion of plans for the trial of German war criminals. See War Department Office Chief of Staff, “Memorandum for Lt. Colonel Murray C. Bernays”, in The War
Crimes Trial at Nuremberg, Harry S. Truman Presidential Library and Museum, 22 November 1944, G-1, p. 2 (available on the Harry S. Truman Library and Museum’s website).
Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal,
Oxford University Press, 2008, p. l.
MacArthur Archives, RG 9, Box 159, Folder ‘War Crimes, Sept. 45-June 46’, “CINCAFPAC ADV to WARCOS”, 25 October 1945, p. 1; ibid., “CINCAFPAC ADV (MACARTHUR PERSONAL) to Washington (SECRETARY OF STATE)”, 2 November 1945,
p. 1; ibid., “WASHINGON (SECRETARY OF WAR) to CINCAFPAC ADV (PERSONAL FOR MACARTHUR)”, 14 November 1945, p. 1; ibid., “CINCAFPAC ADV TOWARSEC”, 17 November 1945, pp. 1-2; ibid., “WASHINGTON (SECRETARY OF
STATE PATTERSON)”, 18 November 1945, p. 1; ibid., “John J. McCloy to General
Douglas MacArthur”, 19 November 1945, pp. 1-3.

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Studythat was supposed to advise the US on occupation policies in Japan, remained under his full control.66 When the Australians tried to convince the
Far Eastern Commission to indict the Emperor for war crimes, MacArthur
warned its members that if they did, they should prepare for an “indefinite
military occupation” involving a million Allied troops.67
Unfortunately, MacArthur’s self-assured manner did not rub off on
Keenan, and almost from the moment he arrived in Tokyo he was overwhelmed by the workload and organizational difficulties. He also had
doubts about not indicting Hirohito and thought that the institution of theEmperor was “still highly dangerous and one that will have to be done
away with before there will be any solid foundation for reasonable expectation of peace”.68
In February 1946, Arthur Comyns-Carr, the British head of theprosecutors’ Executive Committee, 69 sent Keenan a memorandum thatraised concerns about his approach to the preparation of the prosecution’scases. It argued that the Chief Prosecutor was spending too much timeinterrogating individual suspects, and needed to focus on securing “theruling that planning and waging aggressive war constituted a crime in international law”.70 He also suggested that Keenan select 15–20 defendants
who were “representative of the responsibility of various criminal acts orincidents”. He added that while the Japanese public generally supported
such a trial, this could quickly change if the trial was prolonged. Moreover, Comyns-Carr argued that the Tokyo Trial would not garner the sameinternational interest as the one in Nuremberg, and once the latter wasover, the whole subject of international trials would “fall to a vanishingpoint”. Consequently, in selecting defendants, the question of who was
and who was not a major war criminal became a question “of degree”.
The key issues in selecting defendants, he went on, should be their involvement in Japan’s various acts of aggression and their “negligible
66

67

68

69
70

Boister and Cryer, 2008, pp. 21-22, see above note 64; Yuma Totani, The Tokyo War
Crimes Trial: The Pursuit of Justice in the Wake of World War II, Harvard University
Press, Cambridge, 2008, p. 28.
“Memorandum of Interview with General of the Army Douglas MacArthur”, National Diet
Library, 30 January 1946, pp. 3-4 (available on the Library’s official web site).
Keenan Papers, “Joseph B. Keenan to Kenneth McKellar”, Box 2, 26 December 1945, pp.
1-2.
It was made up of Keenan, each nation’s associate prosecutors, and their staffs.
Totani, 2008, p. 66, see above note 66.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

chances of acquittal”. The most obvious defendants would be former
members of the highest organs of State and war, including the Emperor’s
Imperial Conference and Privy Council.71 Keenan accepted most of thesesuggestions but resented what he considered to be British efforts to run
the trial.72
At this point, the tribunal still faced a number of serious issues including the selection of defendants, the Charter, and the final selection of
those nations which would make up the tribunal. MacArthur, Keenan andother members of the prosecution team spent months working on theCharter and its Rules of Procedure, which were issued on 25–26 April
1946. Though modelled on the Nuremberg Charter, there were some differences that centred on trying to avoid some of the problems that theprosecution was facing in Germany. Yet the fact that MacArthur and Keenan rejected suggestions that the US send a liaison officer from Nuremberg to help with trial planning underscored their determination to conduct the Tokyo Trial without help from Jackson and his team in Germany.73
Though both charters were similar in length, the IMTFE Charter
consisted of 17 articles as opposed to Nuremberg’s 30 articles. It was broken down into five sections as opposed to Nuremberg’s seven. Articles 1
to 4 dealt with the basic creation and structure of the tribunal, while Articles 5 to 7 (Articles 6 to13 of the Nuremberg Charter) dealt with the question of jurisdiction. Articles 9 to 10 (Article 16 of the Nuremberg Charter)
discussed the question of a fair trial, and Articles 11 to 15 (Articles 17 to
25 of the Nuremberg Charter) dealt with the powers of the tribunal andthe conduct of the trial. Articles 16 to 17 (Articles 26 to 30 of the Nuremberg Charter) briefly touched on questions of judgment and sentencing.
The nine rules of procedure, which were discussed in Article 9, allowed
the court to amend or change any of these rules to ensure “a fair and ex71

72
73

Boister and Cryer, 2008, pp. 53-54, see above note 64; Totani, 2008, pp. 67-69, see above
note 66.
Keenan Papers, “Joseph B. Keenan to Joseph Bossong”, Box 2, 13 August 1946, p. 2.
MacArthur Archives, RG9, Box 159, Folder ‘War Crimes, Sept. 45-June 46’, “Assistant
Secretary of War to MacArthur”, 27 September 1945, p. 1. MacArthur never responded tothis suggestion; David M. Crowe, “MacArthur, Keenan and the American Quest for Justiceat the IMFTE”, in Kerstin von Lingen (ed.), Transcultural Justice at the Tokyo Tribunal:
The Allied Struggle for Justice, 1946-1948, Brill, Leiden, 2018, vol. 117, p. 73; Bernays
was supposed to go to Japan to help Keenan but retired at the end of 1945.

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Study

peditious trial”. The IMTFE Charter also gave MacArthur, as Supreme
Allied Commander, South West Pacific Area, the power to appoint judges,
the trial’s President, and the General Secretary, whose Secretariat would[r]eceive all documents addressed to the Tribunal, maintainthe records of the Tribunal, provide necessary clerical services to the Tribunal and its members, and perform such other duties as may be designated by the Tribunal.74

Diplomatically, MacArthur thought it best to allow each of thecountries that would sit in judgment in Tokyo to nominate their own judges. But unlike Nuremberg, where each country had alternate judges, there
were none at the IMTFE, which meant that if a judge was away fromcourt for any length of time, as often happened, his country would not be
represented in court. Moreover, most of the judges, though trained as
criminal lawyers, had little experience with international criminal law or
military commissions.75
In the midst of selecting the judges, the prosecutors began preparing
the indictment. MacArthur pushed hard to have the charge of murder included because of the attack on Pearl Harbor. However, most of the prosecutors opposed this idea because it might complicate the principal charge:
the conspiracy to wage aggressive war.76 What complicated all of this was
the fact that even though 36 of the 55 counts in the indictment dealt withcrimes against peace, it was going to be difficult to prove that there had
been a cohesive political-military centre in Japan during the war that
could be found guilty of conspiracy. This was doubly so given the decision not to indict Hirohito. The French judge, Henri Bernard, said asmuch in his dissenting opinion that the failure to indict the Emperor “nullified” the trial and made the accused mere “accomplices”.77
Comyns-Carr, who outlined the general plan for the trial for theother prosecutors, emphasized the importance of focusing on Japan’s acts
74

75

76
77

Charter of the International Military Tribunal for the Far East, 26 April 1946, in Boisterand Cryer, 2008, pp. 7-15, see above note 52 (also annexed to this volume).
The 11 judges were Sir William F. Webb, the Tribunal’s President (Australia), Edward S.
McDougall (Canada), MEI Ju’ao (China), Henri Bernard (France), Radhabinod Pal (India),
Bernard V.A. Röling (The Netherlands), Erima Northcroft (New Zealand), Delfin Jaranilla(Philippines), Lord Patrick (UK), J.P. Higgins/Gen. Myron Cramer (US), and Gen. Ivan
Zaryanov (USSR).
Boister and Cryer, 2008, p. 157, see above note 64.
Crowe, 2014, p. 205, see above note 7; Boister and Cryer, 2008, p. 676, see above note 52.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryof aggression and related crimes throughout Asia. He argued that the guiding principle in selecting defendants was choosing 15 or so who were“representative of the responsibility of the various criminal acts or incidents”. Each defendant should also represent a phase of Japan’s various
acts of aggression and be considered one of Japan’s “principal leaders”.78
Some of the prosecutors questioned this approach and thought it was better to emphasize each defendant’s individual guilt as opposed to their institutional affiliations. Keenan supported Comyns-Carr’s approach andargued that the main goal of the trial was to establish the precedent thatthose who wage aggressive war were Class A war criminals who violated
the “rules of civilization”.79
In the end, the prosecution adopted a 55-count indictment with three
categories – crimes against peace (counts 1 to 36), murder (counts 37 to52), and conventional war crimes and crimes against humanity (counts 53
to 55). Comyns-Carr later explained that they decided to include murderbecause it was important to document the fact that those who initiated aggressive war should be considered as nothing more than “ordinary murderers” who deserved their own “special criminal category”.80 In this context, the prosecution tried to prove throughout the trial that the widespreadnature of Japanese crimes across Asia was such that the only conclusion
one could reach was that “those in leadership circles must have authorized
the commission of war crimes as a general policy of the Japanese war andmilitary occupation”.81
But the various atrocities, war crimes, and crimes against humanity
documented in court proceedings were filtered through the charge of aconspiracy to wage aggressive war, which meant that such crimes did notcarry the same weight in the Tokyo Trial than they did at Nuremberg.82
Keenan tried to get the prosecutors to drop the war crimes charges because he thought it would be hard to link them to some of the defendants.

78
79
80

81
82

Boister and Cryer, 2008, pp. 53-54, see above note 64.
Totani, 2008, pp. 22, 67, 68-69, see above note 66.
At the Trial’s end, the judges rejected Counts 18 to 26 and 39 to 53 which they considered
obscure or redundant; A.S. Comyns-Carr, “The Judgement of the International Military
Tribunal for the Far East”, in Transactions of the Grotius Society, 1948, vol. 34, p. 142;
Totani, 2008, pp. 105-07, see above note 66.
Totani, 2008, pp. 107-08, see above note 66.
Boister and Cryer, 2008, pp. 73, 97-98, see above note 64.

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
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However, such crimes were essential to the cases presented by the Chinese, Filipino and British Commonwealth prosecutors.83
The prosecution initially held the upper hand in the proceedings,
though this changed when the Japanese and American defence lawyers put
up an unexpectedly rigorous defence of their clients. This was doubly surprising given the numerous problems the defence lawyers faced from theoutset of the trial. Initially, the idea was that, like the German lawyers in
Nuremberg, the defendants would have Japanese lawyers. But the Japanese lawyers soon asked MacArthur for help since some of them did not
speak English and were unfamiliar with Anglo-American legal principles.
Over time, MacArthur was able to bring in young civilian and military
lawyers to help their Japanese colleagues. The defence also suffered fromlack of time to prepare its cases, inadequate translation and secretarial
services, as well as office space. This forced the defence to request frequent extensions and adjournments that prolonged the trial and annoyed
the judges and prosecution. This led to questions about the “fair trial criteria under international law” used during the trial.84
The language issue was particularly significant, especially when it
came to documents or testimonies in Japanese or English. Ultimately, thetribunal created a Language Arbitration Board that required the slow
translation of evidence or testimony in court that, according to one prosecutor, slowed the pace of the trial by “one-fifth of its normal pace”.85 Regardless of these challenges, the defence did a better job than the prosecution at addressing some of the core charges against their clients.86
The defence attorneys, whose presentations lasted almost as long as
the entire Nuremberg Trial (24 February 1947–12 January 1948), did little
to challenge the prosecution’s charges of war crimes and crimes against
humanity. Instead, they focused on countering the charge that the defendants were “individually responsible for the widespread atrocities”. They
argued that there was no evidence that such crimes took place with the
83

84
85
86

Ibid., p. 179; R. John Pritchard (ed.), The Tokyo Major War Crimes Trial: The Records ofthe International Military Tribunal for the Far East, Edward Mellen Press, Lewiston, 1998,
vol. 9, pp. 3892, 4610; ibid., vol. 11, pp. 4612-15, 4629-35, 4638, 4642; ibid., vol. 27, pp.
12468-69, 12576-77; ibid., vol. 29, pp. 13422-24, 13456-548, 13526-28, 13651-52; ibid.,
vol. 32, pp. 15035, 15037, 15040.
Boister and Cryer, 2008, p. 90, see above note 64.
Dower, 1999, p. 458, see above note 58.
Pritchard, 1998, vol. 2, see above note 83.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

knowledge or orders of the central government.87 In their attempt to counter such ties, the defence also pointed to differences between Western andJapanese cultural and legal norms as well as the impact that European andAmerican colonialism in Asia had on Japan.88
These points were most poignantly raised by several of the eminent
Japanese attorneys who appeared before the tribunal. Kenzō Takayanagi
challenged the alleged link between Japan’s top leaders and the atrocities
committed throughout Asia, while Dr. Fusaaki Uzawa, Japan’s chief defence attorney, questioned whether aggressive war was truly an international crime under “world law”. He noted that the UK had earlier raisedquestions about the applicability of the Kellogg-Briand Pact on the rightof nations to wage wars of “necessary self-defense”. Japan was not Nazi
Germany, he added, and while the Nuremberg Tribunal had little difficultyproving the ‘aggressive’ nature of the Nazi war in Europe, the court would
have to view such a charge against Japan “ipso dixit (asserted but notproven), if not subservient to popular prejudices or a willful travesty ofhistory”.89
But it was Ichirō Kiyose who laid out the key elements of the Japanese case in his opening remarks in February 1947, who challenged theidea that Japan committed widespread war crimes.90 He argued that Japan’s policies during the war centred on three things: “independence, abolition of racial discrimination, and fundamental principles of democracy”.
He noted that from the moment that the US forced the opening of Japan in
1853, the key goal of Japanese leaders was to preserve the country’s independence and sovereignty. Moreover, he found the charge of racial discrimination to be absurd. Instead, Japan promoted a spirit of racial tolerance as part of its effort to counter such discrimination in East Asia. It also tried to create a new spirit of unity vis-à-vis earlier Western efforts tocarve out spheres of influence in China. Japan’s ‘new order’, the kōdō
(imperial way), emphasized “benevolence, righteousness and moral courage”, and respected “courtesy and honor”.91 He also challenged the con87
88
89
90

91

Totani, 2008, p. 182, see above note 66.
Crowe, 2014, p. 226, see above note 7.
Pritchard, 1998, vol. 88, pp. 42078, 42187-88, 42201-04, see above note 83.
The Nuremberg indictment dealt only with crimes committed from 1 September 1939 to 8
May 1945, while the Tokyo indictment charged the defendants with crimes dating back to
1 January 1928.
Pritchard, 1998, vol. 37, pp. 17017-19, 17021, 17024-26, 17028, see above note 83.

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Study

cept of conspiracy and the murder charges, arguing that they were basedon ex post facto law.92
Takayanagi added that the crimes laid out in the IMTFE Charter
were ‘declaratory’ and not accepted concepts in international law. Thiswas particularly true for the charge of conspiracy. Other defence attorneys
noted, for example, that the Nuremberg Tribunal had ruled that merely
holding an important position in government at the time when a certain
incident took place did not establish that “said accused is guilty of a crime
against peace”. 93 Takayanagi made a similar argument regarding war
crimes and the prosecution’s efforts to compare such crimes to thosecommitted by Nazi Germany. Kiyose added that Japan’s leaders “strongly
desired” its troops strictly to observe the laws of war, but admitted that in
the chaos during the latter part of the war, it was possible that such crimes
might have been committed.94
Takayanagi also argued that Allied efforts to try the Japanese defendants for war crimes was a form of “negative criminality” which theAmerican delegation at the Paris Peace Conference in 1919 defined as“responsibility for failure to prevent ‘conventional’ war crimes and thatnegligence in preventing death is only considered to be non-capital manslaughter in England”.95 His comments were part of the defence’s efforts
to challenge the prosecution’s contention that the Hague and Geneva
Conventions were part of the larger body of customary international law.96
William Logan, one of the more prominent American defence attorneys, stated in his summation on 10 March 1948 that it was the Allied
powers, not Japan, that brought war to the Pacific. This was one of theunderlying defence themes throughout the trial. From Japan’s perspective,
he argued, the war was premeditated, while its roots could be traced backto nineteenth century Western imperialism and colonialism in East Asia.
92
93

94
95
96

Ibid., pp. 17058-59.
Ibid., pp. 42113-15; ibid., vol. 59, p. 28278; while the Nuremberg Tribunal did decide that
the General Staff and High Command were not criminal organizations, it declared thatboth organizations were responsible for widespread suffering of millions of people andwere a “disgrace to the honorable profession of arms […] although they were not a groupfalling within the words of the Charter, they were certainly a ruthless military caste”. See
Nazi Conspiracy, pp. 85-86, see above note 42.
Pritchard, 1998, vol. 37, pp. 17060-61, see above note 83.
Ibid., vol. 88, p. 42202.
Ibid., vol. 89, pp. 42494-513.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Japan could never hope to defeat the Allied powers in a major war, whichmeant that Japan’s role in the war was merely an attempt
to exercise its internationally recognized sovereign right ofself-defense against encroachments by foreign powers which
threatened its very existence – a decision which no authority
questions as being their prerogative.97

One dimension of this argument was an idea that the Japanese attorneys found particularly offensive: Keenan’s statement at the beginningof the trial that the war was “a part of the determined battle of civilization
to preserve the entire world from destruction”.98 From the prosecution’s
perspective, “there was a juridical concept of ‘civilization’ that demanded
the prosecution of aggression”.99 Takayanagi and Kiyose both questioned
what the Allies meant by ‘civilization’ and thought the victors had used
the term to retaliate arbitrarily against Japan.100 Masajirō Takikawa, one of
the members of the defence team, wondered after the trial if the court had
used the idea of ‘civilization’ as a cover for “the primitive idea of retaliation”. Takayanagi agreed, and reminded the court in the spring of 1948
that the prosecution had insisted that the trial be “conducted in order toprotect civilization”. He concurred with this idea, but wondered if ‘respect
for treaties’ and ‘impartiality of trials’ should be included in this concept.101
These points seem to have had little impact on most of the judges,
who found all of the defendants guilty of some or all of the 10 counts accepted by the Tribunal between 4 and 12 November 1948. All were foundguilty of waging aggressive war, while 19 were convicted of war crimes
97

Ibid., vol. 90, p. 43053.
Ibid., vol. 2, p. 384.
99 Boister and Cryer, 2008, p. 279, see above note 64; Robert Jackson made a similar statement in his opening remarks before the Nuremberg Tribunal: “The wrongs which we seek
to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated”.
Robert H. Jackson, The Case Against Nazi War Criminals: Opening Statement for theUnited States and Other Documents, Alfred A. Knopf, New York, 1946, p. 3.
100
Yasuaki Ōnuma, “The Tokyo Trial: Between Law and Reason”, in Chihiro Hosoya, Nisuke Andō, Yasuaki Ōnuma, and Richard H. Minear (eds.), The Tokyo War Crimes Trial:
An International Symposium, Kodansha International, Tokyo, 1986, p. 47; Madoka
Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg legacy, Routledge, London, 2008, p. 72; Pritchard, 1998, vol. 2, p. 189, see above
note 83.
101 Pritchard, 1998, vol. 2, p. 189, see above note 83.
98

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Studyand crimes against humanity. Seven of the defendants were sentenced todeath, while 16 received life sentences. Two of the defendants received
sentences of 7–20 years, while two died during the trial. Another had thecharges against him dropped because of mental illness.102
Justices Webb, Bernard and Röling wrote separate opinions thatchallenged some of these rulings, while Justice Pal wrote his own judgment. Webb and Bernard strongly disagreed with the decision not to indict
Emperor Hirohito, while Röling wrote his dissenting opinion to try toconvince MacArthur to reduce some of the defendants’ sentences. On theother hand, Röling also thought that some of those given life sentences
should have been condemned to death.103
Justice Pal would have none of this and voted to acquit all of the defendants. He questioned the authority of the Tribunal and its Charter, andargued that aggressive war was not an international crime. Consequently,
he wrote, the trial itself was “only a sham employment of legal process forthe satisfaction of a thirst for revenge”, while the charges were based on
ex post facto law. 104 He also reminded the court of Justice Jackson’s
statement at Nuremberg that the plans by one nation to dominate anotherare “the worst of crimes”, and called the US-led Allied boycott of Japan
before the conflict an act of war.105 He also agreed with the defence about
Western policies of colonial domination, boycotts and the use of atomic
weapons. Some thought, he argued, that the use of such weaponry introduced “the new and unpredictable age of soul”. But the use of atomic
weapons in Hiroshima and Nagasaki did not awaken what some hoped
would bring about “a unity of humanity, linked to all our fellow humanbeings, irrespective of race, creed, or color, by bonds which have been
fused unbreakably in the diabolical heat of these explosions”. In the end,
Justice Pal concluded, there was no “justification” for these “inhumanblasts”.106
MacArthur and Keenan were extremely sensitive to such criticism,
which had been mounting for years. In the end, it led MacArthur, in conversations with Keenan, to turn down requests from the Judge Advocate
102

Crowe, 2014, pp. 210-12, see above note 7.
Boister and Cryer, 2008, pp. 632-39, 676-77, 775-807, see above note 52.
104 Ibid., pp. 819, 827, 829, 837.
105 Ibid., pp. 867, 923.
107 Ibid., p. 867.
103

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The Tokyo Tribunal: Perspectives on Law, History and Memory

General and the State Department to publish all or some of the most important parts of the trial’s transcripts, something MacArthur decided
against because of “financial and practical reasons”. According to Colonel
Carpenter, thebasic principles involved [in the Tokyo Trial] have all been
embodied in the historical presentation of the German trial
and it is believed there is little independent interest in theJapanese version.107

This decision robbed historians, legal scholars, and jurists of a bodyof evidence that would have had a profound impact on the study of thisimportant period in global history. It also limited the use of such history,
evidence and precedents in some of the important ad hoc trials in the latetwentieth and twenty-first centuries. Fortunately, though belatedly, jurists
and scholars are now able to study the IMTFE as one of the most important trials in the history of international criminal law.
3.4. Conclusion
While Justice Pal certainly made some valid points about the trial, it muststill be seen in a very different light than its sister trial in Nuremberg. The
nature of the defeat and occupation of Nazi Germany differed from that ofJapan. Moreover, the defeat of Germany was the principal goal of the Allied powers, and planning for its occupation dictated the pace of discussions about the Nuremberg Trial.
The same would not be the case for Japan because until Hiroshima
and Nagasaki, it was expected to take up to two years to conquer the Japanese home islands. The US, which had borne the brunt of the fighting in
the Pacific, felt, particularly in light of Pearl Harbor, that it had earned theright to occupy Japan and rebuild it in a way to ensure it was never again
a threat to American interests in the Pacific.
But unlike the question of trying major war criminals in Germany,
the US took it upon itself and General Douglas MacArthur to initiate
plans for the trial of major Japanese war criminals. Using the IMT Charteras a model, Washington and MacArthur began planning for the trial with108

MacArthur Archives, RG 9, Box 160-F, ‘War Crimes, Nov. 48-May 509’, “Alva C. Carpenter to DA WASH DC”, 22 May 1950, p. 1; the full transcripts and evidence from theNuremberg trial were published soon after the trial ended and are now available online.
The transcripts of the Tokyo Trial were only published in 1981 and only recently have become available in the ICC Legal Tools Database.

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3. The Tokyo and Nuremberg International Military Tribunal Trials:
A Comparative Studyout any direct contact with US officials in Germany. Moreover, it was decided that the principal thrust of the trial would centre around crimes
against peace and aggression. Consequently, defendants were chosen because they were representatives of the Japanese military, leadership andcivilian organizations that played a role in the planning and execution of
the war in East Asia and the Pacific. At the same time, the US and its 10allies that oversaw the proceedings never gave any serious thought toJackson’s idea about the possibility of finding some of those in the dock
not guilty.
Both trials had flaws that affected the pace of the proceedings andtheir outcomes. Nuremberg was a much simpler trial to conduct because
only four countries sat in judgment. The only outliers were the Soviet judicial and prosecution teams who suffered from lack of experience with
Western style trials. But this did not affect the pace of the trial in Germany,
and, generally speaking, each defendant, who was represented by German
counsel, received a fair trial. This was not the case with the Tokyo Trial,
which was handicapped by a complex indictment, 11 prosecution teams,
and 11 judges with very diverse backgrounds. Some of the countries that
sat in judgment in Tokyo were former colonial powers that saw the proceedings as an opportunity to regain a foothold in East Asia. This, coupledwith the US decision not to indict the Emperor, serious language problems,
the inadequate leadership of Joseph B. Keenan, and a youthful, inexperienced defence team drawn primarily from the US, saw a trial increasingly
fraught with dissension. Most importantly, MacArthur’s decision not toallow the publication of the trial’s transcripts created a serious void thatrobbed scholars and others the opportunity to understand the complex dynamics of the trial and its outcome better.

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4______The Tokyo Tribunal:
A Transcultural Endeavour
Kerstin von Lingen*4.1. Introduction
There is a popular book, written in 1987, whose title is telling: The Other
Nuremberg: The Untold Story of the Tokyo War Crimes Trials. 1 It was
written by one of the accredited journalists present in the courtroom, andrepresents in a nutshell the surprise that, while so much is known about
the International Military Tribunal (‘IMT’) in Nuremberg, its Asian sister
tribunal remained largely unknown in the West until the 1980s. This is
surprising, as the Tokyo Tribunal lasted for three and a half years and involved hundreds of staff, including lawyers, government officials, clerks,
journalists and translators.
The Tokyo Tribunal was established shortly after the Nuremberg
Tribunal (which started in October 1945), and held trials from May 1946
until November 1948 under its official heading, the International Military
Tribunal for the Far East.2 It indicted 28 Japanese defendants, amongst
them former prime ministers, cabinet ministers, military leaders and diplomats, and displayed a list of 55 charges. It was also one of the first “in*1

2

Kerstin von Lingen is Professor in the Institute for Contemporary History at the University of Vienna. From 2013 to 2017, she led an independent research group at Heidelberg
University in the Cluster of Excellence, “Asia and Europe in a Global Context” entitled,“Transcultural Justice: Legal Flows and the Emergence of International Justice within the
East Asian War Crimes Trials, 1946-1954”, supervising four doctoral dissertations on theSoviet, Chinese, Dutch and French war crimes trial policies in Asia, respectively.
Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes
Trials, William Morrow & Co., New York, 1987.
Scholarship on the International Military Tribunal for the Far East (‘IMTFE’) has increased over the last decades. For an overview, see Yuma Totani, The Tokyo War Crimes
Trial: The Pursuit of Justice in the Wake of World War II, Harvard University Press, Cambridge, 2008; and Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal, Oxford University Press, 2008; and Kerstin von Lingen (ed.), Transcultural Justice at the Tokyo Tribunal: The Allied Struggle for Justice, 1946-1948, Brill,
Leiden, 2018.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

terracial and multilingual criminal trials” in history.3 The name of the Tribunal, as Boister and Cryer have noted, echoes an ‘orientalist approach’,and it would therefore be better replaced by ‘Tokyo IMT’. 4 Therefore,
even though it might be problematic to alter an established and official
name, for this chapter ‘Tokyo Tribunal’ is preferred.
To bring to the fore the voices of those involved in the Tokyo Tribunal is an interesting field of research which this chapter explores. The
Tribunal’s 11 judges and prosecution teams, as well as the team of Western and Japanese defence attorneys, brought together not only different
national backgrounds, languages and ideologies, but also different perceptions of justice, deriving from varying legal traditions, personal training
and experiences with courts.5 Many of the lawyers and judges involved
had already been in high positions within their home countries, althoughmost of them had no experience with international law, and none of themhad ever been to Japan.6
When the Tribunal commenced operations, the Western Allies andall convening parties at the judge’s bench held high hopes of achieving a‘second Nuremberg’, but these hopes were shattered. The experience ofNuremberg might have triggered expectations of unanimity, but the Tokyo
Tribunal was different in many respects, which will be highlighted in thischapter.
As shown by James Burnham Sedgwick’s study “The Trial Within”,7 justice was negotiated through several intricate concurrent processes
wherein the ‘human element’, as we might call the actors involved, had
3

4
5

6

7

Ireland claims that it was the first such trial, see Gordon Ireland, “Uncommon Law in Martial Tokyo”, in The Yearbook of World Affairs, 1950, vol. 4, p. 66. However, this is not thecase: the British trial of Toshio Aoki in Singapore in February 1946 was earlier and wasboth interracial (one of the judges was Indian) and multilingual. Also, the Shanghai mixed
court would qualify (Chinese and British judges, defendants, and accused), although arguably, both trials were not international tribunals. The author thanks Robert Cribb for pointing this out.
Boister and Cryer, 2008, p. 3, see above note 2.
Many thoughts expressed in this chapter are presented in more depth in Lingen, 2018,
above note 2, especially see the introduction (pp. 1-28).
Boister and Cryer, 2008, p. 78, see above note 2; Solis Horwitz, “The Tokyo Trial”, inInternational Conciliation, 1950, no. 465, p. 494.
James Burnham Sedgwick, “The Trial Within: Negotiating Justice at the International
Military Tribunal for the Far East, 1946–1948”, unpublished Ph.D. thesis, University of
British Columbia, 2012.

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4. The Tokyo Tribunal: A Transcultural Endeavour

profound consequences on the trial’s proceedings and outcomes. A research group at Heidelberg University, 8 led by the present author, has
therefore coined the term ‘transcultural justice’ to describe the threefold
challenges facing such a tribunal: (1) the variety of cultural and professional backgrounds, (2) the divergent expectations of ‘justice’ and the roleof international courts, as well as (3) the human element of forming within and without groups. By restoring agency to all 11 national teams, judges and prosecutors, it is possible to better situate the significance of individual contributions to verdicts, thus re-centring the focus on the national
positions of countries which have been side-lined as ‘minor’ players in theTokyo Tribunal.
The first two IMTs, at Nuremberg and Tokyo, claimed to be enforcing ‘justice’, but nevertheless proved to be battlegrounds for intense political and ideological struggles within the new post-war world order. They
have contributed to the development of international criminal law, theformation of transcultural norms of legality and legitimacy, as well astransnationally debated (and contested) notions of ‘justice’. This holds
certainly true for the Nuremberg Tribunal, which is often cited as the legal
forerunner to key institutions of international justice, such as the International Criminal Court (‘ICC’), active since 2002, or the ex-Yugoslavia and
Rwanda Tribunals. However, the legacy of the Tokyo Tribunal had practically fallen into oblivion in the West, until its scholarly awakening with R.
John Pritchard’s laudable publication of the trial transcripts in 1981, andan online version accessible since 2017 (through the ICC Legal Tools Database). 9 Often overlooked due to language constraints is the fact that
there was a Japanese edition of selected transcripts and evidence alreadyin 1953, which focused on explaining to the Japanese people why the war
was started and how it had been lost.10 The impact of political motivations

8

9

10

The Research Group, “Transcultural Justice: Legal Flows and the Emergence of International Justice within the East Asian War Crimes Trials, 1945-1954” was active between
2013 and 2017 at Heidelberg University, inquiring into Allied approaches to post-war
courts in the aftermath of the Pacific War (www.transcultural-justice.uni-hd.de).
R. John Pritchard, Sonia Magbanua Zaide, and Donald Cameron Watt, The Tokyo War
Crimes Trial. Transcripts and Index, Garland, New York, 1981, vol. 22.
See Beatrice Trefalt, “Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context of the International Military Tribunal for the Far East”, chap. 15 below.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryon the trial’s conduct,11 and even racism on the bench,12 have also been
discussed in previous scholarship.
War crimes trials like the Tokyo Trial are to be studied not only as
the scene of battles for justice between the defence and the prosecution, or
as arenas for abstract struggles amongst political interests and ideologicalprinciples, but as arenas of constant negotiation. This chapter thus takes acloser look at the impact of the different cultural, linguistic, political andlegal traditions of the various participants on the Tribunal’s planning andoperation. In the following sections, I will focus on the moments of judges’ selection, colonial endeavours, structural difficulties, the problem ofteam spirit and fraction building, and general fields of friction.
4.2. Selecting Judges
Setting up the Tribunal was more problematic at Tokyo than it had been at
Nuremberg. By October 1945, the Supreme Commander of the AlliedPowers for Japan, General Douglas MacArthur, was entrusted with setting
up a tribunal to bring the Japanese military and political elite to justice.
The US State Department subsequently called on each of the nine signatory States of the Japanese surrender to nominate a judge, substitute judge
and assistant prosecutor by 5 January 1946.13 The United Kingdom, China,
Australia, the Netherlands, France, Canada, New Zealand and the Soviet
Union followed this request. The limitation on the surrender signatories
prompted some criticism in the Far Eastern Commission for Japan, where
India as well as the Philippines also held a seat. In view of their wartime
services rendered (and the ongoing decolonization), they successfully
claimed a seat each on the bench. On 26 April 1946, the Charter wasamended accordingly.14 Due to this late decision, however, when the Tokyo Tribunal opened on 3 May 1946, only the initially nominated ninejudges had arrived in Japan.
11

12

13
14

M. Cherif Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to
Establish a Permanent International Court”, in Harvard Human Rights Journal, 1997, vol.
10, p. 33.
Terry Hewton, “Webb’s Justice. The Role of Sir William Flood Webb in the Tokyo Trial,
1946–1948: An Examination of the Australian Judge in a Political Trial”, unpublished
Honours thesis, University of Adelaide, 1976, p. 30, quoted in Boister and Cryer, 2008, p.
94, see above note 2.
Boister and Cryer, 2008, pp. 27, 80, see above note 2.
Foreign Relations of the United States (FRUS), “Far Eastern Commission Policy Decision
FEC 007/3”, United States Department of State, 3 April 1946, vol. 8, pp. 424-27.

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4. The Tokyo Tribunal: A Transcultural Endeavour

The judges finally travelling to Tokyo were Sir William Webb forAustralia as President of the Tribunal, William Patrick for the United
Kingdom, Edward Stuart McDougall for Canada, Erima Harvey Northcroft for New Zealand, MEI Ju’ao15 for China, Ivan Zaryanov on behalf of
the Soviet Union, Bernard Röling for the Netherlands, Henri Bernard representing France, Radhabinod Pal as the Indian judge, and Delfin Jaranilla
for the Philippines. The United States had first sent J.P. Higgins, who was,however, replaced by Myron C. Cramer after six weeks. None of themspoke Japanese. The fact that 6 of the 11 judges were familiar with AngloAmerican common law influenced the Tribunal quite heavily, and wasseen as a disadvantage to and by the Soviet, French and Dutch judges especially, who had different legal backgrounds.16 Importantly, the Tokyo
Tribunal also gave the smaller Allied nations a voice in the trial – unlike
at Nuremberg, where only four of the victorious powers took seats. Thus,
it is fair to state that, considering the manifold legal or judicial cultures
represented in the courtroom, Tokyo produced a broader variety of meanings of ‘justice’ than Nuremberg.17
Besides the United States and the United Kingdom, all nine coun18
tries were eager to make their national voices heard, and some even used
the bench to display their national narrative of the Pacific War. The Commonwealth States of Australia, Canada and New Zealand were especiallyeager to not only distinguish themselves from the British, but also claim
reward for their war services through more political representation. As
Yuma Totani has contended, the Australian participants in the Tokyo Tribunal “profoundly shaped the course of the trial and left their deep imprint
on its outcome”.19 In the case of New Zealand, this is quite obvious, as
Boister underlines: “they perceived international law’s granting of interest-laden rights to both the weak and powerful alike as an opportunity to
try to control the depredations of the more powerful political outliers that

15

16

17
18

19

There are different romanizations for MEI’s first names, Ju’ao and Ru’ao can both befound.
David M. Crowe, War Crimes, Genocide and Justice, Palgrave MacMillan, New York,2014, p. 209; Boister and Cryer, 2008, p. 82, see above note 2.
“Introduction”, in Lingen, 2018, p. 5, see above note 2.
For the Philippines’ case, see Hitoshi Nagai, “Burdened by the ‘Shadow of War’: JusticeJaranilla and the Tokyo Trial”, in Lingen, 2018, pp. 202-20, see above note 2.
Totani, 2008, p. 42, see above note 2.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

threaten them”.20 A model was the foundation of the League of Nations
and discussions during the Great War, as Isabel Hull had already argued
with view to the community of international lawyers.21
In the case of China, representation on the bench was of utmost importance, after the civil war started, to minimize the influence of the Nationalist leader CHIANG Kai-shek within the circle of major Allies. Until
1944, China had been considered one of “the four big Allies”.22 To be represented at Tokyo on the bench first served China’s political agenda, andsecond, helped it to overcome the legal bias created through the colonial
rules that had stripped Chinese courts the right to sit in judgment over foreign nationals. This so-called ‘extraterritoriality clause’ was a constantpoint of friction between China and the Western Allies, and had beenabolished by the United States and finally by the United Kingdom in 1943.
The Tokyo Tribunal was a symbol for China’s return to full status. China
was able to present itself as a legally modern and civilized nation.23
Finding suitable candidates was thus a highly sensitive and politicaltask. British Foreign Secretary Ernest Bevin,24 when asked to nominate
candidates for the Tokyo Tribunal, observed:
This trial is of considerable significance to us, because of theimportant role which we play in the Far East, and also because of the tremendous effect which the Pacific War had onlarge numbers of British subjects and on important British
territories.25

20

21

22

23

24

25

On the New Zealand team and its political stances to emancipate from a mere British
Commonwealth colony, see Neil Boister, “New Zealand’s Approach to International Criminal Law from Versailles to Tokyo”, in Lingen, 2018, pp. 182-201, see above note 2.
Isabel V. Hull, A Scrap of Paper: Breaking and Making International Law during theGreat War, Cornell University Press, Ithaca, 2014, p. 320.
Rana Mitter, Forgotten Ally: China’s World War II, 1937-1945, Houghton Mifflin Harcourt, Boston, 2013.
Anja Bihler, “On a ‘Sacred Mission’: Representing the Republic of China at the International Military Tribunal for the Far East”, in Lingen, 2018, pp. 84-102, see above note 2.
Kerstin von Lingen, “Managing Justice: Judge William Patrick, Prosecutor Arthur
Comyns-Carr and British Approaches to the IMTFE”, in idem, 2018, pp. 103-23, seeabove note 2.
The National Archives at London (‘TNA’), LCO 2/2986 Bevin to Patrick, 7 February 1946.

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4. The Tokyo Tribunal: A Transcultural Endeavour

Participation in the trial was seen as an enhancement of the United
Kingdom’s prestige in Asia. 26 Whitehall was surely on a mission tostrengthen the Nuremberg Charter by indicting ‘crimes against peace’(aggression), ‘conventional war crimes’, and crimes against civilians(summarized under the charge of ‘crimes against humanity’) set down in
the London Charter of August 1945.27 However, this might be one of thefundamental misconceptions of British and American lawyers. Expecting
Tokyo to become ‘the other Nuremberg’ ignored that the war in Asia wasless clear-cut when it came to defining Japan’s violation of internationallaw, unlike Nazi atrocities and the genocide.
Moreover, unlike for the IMT at Nuremberg, finding suitable personnel was a problem, although many saw it as a national duty to be represented at Tokyo, as it was perceived as one of the elements of Pacificpost-war order resettlement. This was especially the case for the returning
European colonial powers. A common feature was that judges or prosecutors who had been nominated frequently declined, and only the third or
fourth candidate accepted – this was the case with the United Kingdom,France, the Netherlands and India28, for example. Different from Nuremberg, it seems that many who rejected the post had not perceived it to be aclever career move to serve a newly established war crimes court in a faraway country, when national foreign policy seemed to prioritize Europe.
Apart from personal motivations, institutional reservations were also voiced. The experience of the Nuremberg Tribunal had already given ataste of the consequences of longer absences within the home district
courts.29 Thus, in the British case, Lord Chancellor William Jowitt suggested the selection of someone from the Scottish Court of Session (thesupreme civil court). 30 After short consultations, Jowitt came up withthree candidates and named Judge McIntyre (Lord Sorn), Lord Keith andLord Patrick, to “play […] the part which Lawrence is playing at Nuremberg”.31 It was agreed that Patrick was the most suitable amongst the can26

27
28

29
30
31

Kirsten Sellars, “William Patrick and ‘Crimes Against Peace’ at the Tokyo Tribunal,
1946–1948”, in The Edinburgh Law Review, 2011, vol. 15, no. 2, p. 170.
Lingen, 2018, p. 103, see above note 2.
On the Indian case, see Milinda Banerjee, “India’s ‘Subaltern Elites’ and the Tokyo Trial”,
in Lingen, 2018, pp. 262-83, see above note 2; Sellars, 2011, p. 175, see above note 26.
Sellars, 2011, p. 170, see above note 26.
TNA, LCO 2/2986, Letter Undersecretary Normand to Jowitt, 16 January 1946.
TNA, LCO 2/2986, Letter Jowitt to Shawcross, 14 January 1946.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

didates as he was not married, and had no dependents, which would facilitate a months-long absence.32 In the case of Canada,33 although the desired candidate, Justice John Andrew Hope, had agreed in principle andwas himself eager to be part of the national team, the ministry objected to
granting him leave for the duration of the trial. Canadian Deputy Minister
Varcoe feared that “the administration of justice in Ontario will suffer if[Justice Hope] is absent for three months at this time”.34 Another case inpoint was the United States’ nomination of Judge Higgins, who, as mentioned, was replaced after six weeks, as his home court feared that hewould be away from office for too long.35
Thus, most of the political actors carelessly undervalued the challenges of an international court, had strong misconceptions about its
length, and had no measures to replace the personnel missing at home.
Also, unlike at Nuremberg, there was no wise provision to nominate ajudge and an alternate, for times of absence. This resulted in the nonrepresentation of a country if its judge was absent, for duty, illness or
simply (and rare) leave to see his family.
4.3. Colonial Endeavours
The former European colonial powers merit special attention. 36 The
Dutch,37 who had been especially active within the United Nations War
Crimes Commission at London in planning war crimes trials post-1945,38
were utterly disappointed when they were not called to the bench in Nu32
33

34

35

36

37

38

Lingen, 2018, p. 105, see above note 2.
Yuki Takatori, “‘Little Useful Purpose Would be Served by Canada’: Ottawa’s View of
the Tokyo War Crimes Trial”, in Lingen, 2018, pp. 148-61, see above note 2.
Library and Archives Canada (LAC), RG 25/vol. 3641/File 4060-C-40, Letter from Deputy Minister of Justice, 10 January 1946. Thanks to Yuki Takatori for pointing this sourceout.
Yuki Takatori, “The Forgotten Judge at the Tokyo War Crimes Trial”, in Massachusetts
Historical Review, 2008, vol. 10, pp. 115-41.
That said, the British case seems to have functioned a bit outside of the colonial logic,
which the Netherlands and France displayed, as will be shown later by documentary evidence.
The following paragraph is based on and cites Lisette Schouten, “In the Footsteps of Grotius: The Netherlands and Its Representation at the International Military Tribunal for the
Far East, 1945-1948”, in Lingen, 2018, pp. 242-61, see above note 2.
Kerstin von Lingen, “Legal Flows: Contributions of Exiled Lawyers to the Concept of‘Crimes against Humanity’ During the Second World War”, in Modern Intellectual History,
2020, vol. 17, no. 2.

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remberg, but could only ‘help’ within the French team.39 When J. Loudon,
the Dutch ambassador to Washington, forwarded the request to the Dutch
Ministry of Foreign Affairs, satisfaction seemed near. However, the Ministry was preoccupied with internal reforms, shifting international relations and a de facto colonial war in the Netherlands East Indies, and wastherefore reserved in its reaction. The adjudication of foreign war criminals, especially those in the ‘Far East’, was by no means a priority. Ministry jurist E. Star Busmann considered Dutch participation in the Tribunal“unrealistic and not in our interest” in light of the more recent politicaldevelopments in Indonesia, and pointed out that it could well be possiblethat the Netherlands, when suppressing the Indonesian independence
fighters, would use methods that other countries might regard as war
crimes. 40 Considering the later developments, his comments mirror the‘double standards’ applied by the old colonial powers in Asia with regard
to their former colonies.41 Nonetheless, the Minister of Foreign Affairs,
E.N. van Kleffens, decided that the Netherlands should fulfil its Allied‘duty’. Furthermore, participation in an international tribunal fitted wellwith the long-standing Dutch tradition of the promotion of an international legal system. Another consideration, according to Van Kleffens, was the
publicity that would be given to these trials. Thus, although the Netherlands saw little merit in joining an international war crimes tribunal at first,
national interests, the chance to regain recognition and a commitment tointernational law prevailed; it was decided that the Netherlands would
participate.42
For France, the prospect of regaining national prestige, which wastainted by the Vichy government’s collaboration with Japan that lasted
until March 1945, made the selection of a suitable candidate a matter of
39

40

41
42

The Dutch representation at the Nuremberg Trial was limited to Samuël John Baron van
Tuyll van Serooskerken, who assisted the (French) prosecution section of the International
Military Tribunal. The invitation for the IMTFE extended to the Netherlands therefore entailed, for the first time, that the Netherlands could actually contribute to the adjudicationof major war criminals at an international level.
NL-HaNA, 2.05.117, ‘Ministerie van Buitenlandse Zaken: Code-archief 1945–1954’, inv.
no. 6671, Nota Star Busmann, October 1945. The author thanks Lisette Schouten for pointing this source out to me.
Schouten, 2018, p. 244, see above note 37.
L. van Poelgeest, Nederland en het Tribunaal van Tokio : volkenrechtelijke polemiek eninternationale politiek rond de berechting en gratiëring van de Japanse oorlogsmisdadigers, Gouda Quint, Arnhem, 1989, pp. 25-26; Schouten, 2018, p. 245, see above note 37.

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national honour.43 Unlike at Nuremberg, the presence of the French was
not unquestioned by other Allies in the Pacific. As Beatrice Trefalt has
observed,
for the French prosecution, and the French Government representation in Tokyo, the Tokyo Tribunal had a central dimension as a stage upon which the French Government demanded to record its assertions of victimhood, and justified
its presence amongst the nations now joined in punishing Japan’s wartime leadership.44

Paris was therefore not only looking for first-class lawyers, but also diplomats to bolster the new narrative of Free France legitimately sitting injudgment. Judge Henri Bernard was by no means the first choice of the
Quai d’Orsay, but as other candidates had already declined due to poor
health or other commitments, the ‘pool’ of lawyers versed in both international law and colonial experience in Asia was very limited. According toJean Esmain, France’s first choice was to designate Jean Escarra, whoplayed a key role in re-designing the Chinese Civil Code of 1929, but hedeclined. 45 Nonetheless, Paris was determined that it needed somebody
who could control the narrative emanating from the Tokyo Trial, which
would inevitably also address the French collaboration with Japan. Bernard was chosen, apart from his availability, for his loyalty. He was a colonial magistrate who had sided with the Free French in August 1940,
when the French authorities joined de Gaulle’s forces in French Equatorial
Africa (Congo). A military tribunal convened under the Vichy regime had
even sentenced Bernard to death in absentia.46 He was paired in Tokyo
with Ambassador Zinovy Peshkoff and Prosecutor Robert Oneto, who in-

43

44

45

46

The following paragraph is based on and cites Ann-Sophie Schoepfel, “Defending French
National Interests? The Quai d’Orsay, Ambassador Zinovy Peshkoff, Justice Henri Bernard and the Tokyo Trial”, in Lingen, 2018, pp. 221-41, see above note 2.
Beatrice Trefalt, “The French Prosecution at the IMTFE: Robert Oneto, Indochina and the
Rehabilitation of French Prestige”, in Kerstin von Lingen (ed.), War Crimes Trials in the
Wake of Decolonization and Cold War in Asia, 1945-1956: Justice in Time of Turmoil,
Palgrave/Springer, Cham, 2016, p. 52.
Jean Esmein, “Le juge Henri Bernard au procès de Tokyô”, in Vingtième siècle, revued'histoire, 1998, vol. 59, p. 4.
Le Blanc, Dépôt central d’archives de la justice militaire (DCJAM), Judgment of Henri
Bernard, Minutes of the French Permanent Military Tribunal in Clermont, 12 September
1941. The author thanks Ann-Sophie Schoepfel for pointing this out to her.

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4. The Tokyo Tribunal: A Transcultural Endeavour

fluenced the Tokyo Tribunal quite heavily and were able to establish thedesired narrative for Free France.47
4.4. Structural Difficulties
The prosecution was organized under American leadership, as Joseph
Keenan headed the International Prosecution Section, and all national
teams sent in their ‘associate prosecutors’. Some names even have a lasting legacy today: among them Arthur Strettell Comyns Carr from Britain,
with Christmas Humphreys as one of his juniors; Govinda Menon from
India, with Krishna Menon as his junior; Sergej Golunsky from the Soviet
Union, a jurist and diplomat who had attended the conferences of Dumbarton Oaks, Yalta and Potsdam; the Chinese prosecutor XIANG Zhejun;and the United States’ counsel John W. Fihelly and John Darsey.48 Asia
was represented in the International Prosecution Section through the Chinese, Filipino and Indian members. However, the organization of the trial,in particular the drafting of the indictment, was not organized by theAmerican team, but taken on by the British. According to Morris, Webb
attributed the length of the trial to a number of factors, including the scopeof the indictment, the amount of the evidence presented, and the difficulties of translation.49
It became clear on arrival that this trial would last much longer thanestimated. Shortly after arrival, Comyns Carr wrote back in intense frustration to London:
This is a frightful job you have let me in for. I have alreadybeen here as long as you said the whole trip would take, andthere is no sign of the proceedings even beginning. On arrival I found the Americans with a huge staff engaged in anenormous research with a stack of documents which havenever even been listed or translated.50

47
48

49

50

Trefalt, 2018, pp. 51-68, see above note 44.
Meirion Harries and Susie Harries, Sheathing the Sword: The Demilitarization of Japan,
Macmillan, New York, 1987, p. 115.
Narrelle Morris, “Sir William Webb and Beyond: Australia and the International Military
Tribunal for the Far East”, in Lingen, 2018, p. 57, see above note 2. She quotes an unsigned document clearly written by Webb: National Archives of Australia (NAA), M1418,
10, “Length of the Trial”, 23 June 1947.
Cited after Harries and Harries, 1987, p. 118, see above note 48.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

The result of the British lead in drafting the indictment was that
Keenan was especially watchful of the British prosecutor, Comyns Carr,
whom he saw as an opponent. He was ready “to restore his dignity, and if
necessary, to do so by pushing aside the Commonwealth prosecutors or
anyone else who might steal the limelight from him”, as Totani underlines.51 The Commonwealth judges, in turn, tried to remove Keenan fromoffice for being “incompetent” on at least three occasions.52
As in Nuremberg, the Tokyo Charter centred on the charge of‘crimes against peace’ (aggression), whilst ‘crimes against humanity’ became bound to crimes against peace and war crimes. Since judges in Nuremberg had already been reluctant to apply the new concept of ‘crimes
against humanity’, it was decided to bind it to one of the other charges –scholars speak of the ‘war nexus’.53 However, the original intention, andthe underlying concept of the exile lawyers who coined the term, was toprosecute all crimes committed against any civilian population, even outside an armed conflict.54
The Tokyo Tribunal focused on the so-called ‘Class A’ war criminals, who were charged with crimes against peace,55 whilst B/C-class war
criminals should be brought to justice elsewhere in Asia where their deeds
had been committed. 56 Expectedly, the selection of defendants became
another source of dispute.
Problems arose also in respect of matters of procedure, as the Soviet
example shows.57 The Soviet delegation at the Tokyo Tribunal was initially headed by Sergey Golunsky.58 Fluent in English, French and German,

51
52

53

54
55
56

57

58

Totani, 2008, p. 36, see above note 2.
Kirsten Sellars, ‘Crimes Against Peace’ and International Law, Cambridge University
Press, 2013, p. 188.
M. Cherif Bassiouni, “Crimes against Humanity: The Need for a Specialized Convention”,
in Columbia Journal of Transnational Law, 1994, vol. 31, no. 3, p. 463.
Lingen, 2018, see above note 38.
Boister and Cryer, 2008, p. 49, see above note 2.
For comprehensive research on the Class B/C trials, see Sandra Wilson, Robert Cribb,
Beatrice Trefalt, and Dean Aszkielowicz, Japanese War Criminals: The Politics of Justice
After the Second World War, Columbia University Press, New York, 2017.
The following paragraph is based on Valentyna Polunina, “The Soviets at Tokyo: International Justice at the Dawn of the Cold War”, in Lingen, 2018, p. 128, see above note 2.
Professor Golunsky was a member of the Board of the Ministry of Foreign Affairs of the
USSR, Chief of the Department of Legal affairs of the Ministry, Ambassador Extraordi-

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4. The Tokyo Tribunal: A Transcultural Endeavour

Golunsky had worked as Stalin’s consultant and interpreter in the Yalta
and Potsdam conferences of the Heads of Government of the Soviet Union, the United States and the United Kingdom. At the Tokyo Tribunal, he
was appointed as the Soviet Associate Prosecutor. The peculiarity of theSoviet legal practice of the time that gave State prosecutors a leading rolein a trial caused difficulties. In appointing Sergey Golunsky as the head ofthe delegation, the Soviet government hoped that his previous experienceand mastery of foreign languages would help him in his responsible position to establish contacts with other delegations and promote the interestsof the Soviet Union at the Tribunal. Nevertheless, the Soviets did notcount on the fact that the judges were expected to head delegations, andtherefore were quite surprised when they arrived in Tokyo and were facedwith a completely different attitude towards the role of judges.59 A problematic inconvenience for the whole Soviet delegation was the fact that
Judge Zaryanov did not speak any foreign languages, and could only
communicate with his colleagues through his interpreter.
It has been an often-heard complaint that the trial procedure was notplanned as a joint effort of the 11 nations involved, but instead was imposed on many of the participating nations on arrival. This view emphasizes American dominance of the trial and the internal dynamics, where
not all States were considered to be in the front row of preparations. Importantly, however, the British and Australian prosecutors immediately
took the lead in forming an Executive Commission for drafting the indictment, with Comyns Carr and the Australian prosecutor Alan Mansfield leading the team.60 The drafting of the indictment was without doubt
a major legal achievement of the Commonwealth prosecutors, and is thelong-lasting legacy of Comyns Carr, who used the Tokyo Trial to risefrom mid-range barrister and King’s Counsel at Gray’s Inn into a real star,rightly knighted for his services after his return from Tokyo in 1949.61

59
60
61

nary and Plenipotentiary, member of the Academy of Sciences of the USSR, and Doctor of
Law.
Polunina, 2018, p. 131, see above note 57.
Boister and Cryer, 2008, p. 52, see above note 2; Totani, 2008, p. 18, see above note 2.
Lingen, 2018, p. 108, see above note 2. See his biography at Oxford Dictionary of National Biography.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

4.5. Team Spirit
In handling the trial, the nations agreed that each team would present several charges of special importance to that State and related to a certain
defendant. Commonly addressed as the ‘national prosecution phases’,
these sessions usually lasted about six weeks and gave national teams thepossibility to focus on a certain topic (for example, Australia focused on
mistreatment of prisoners of war in its phase, which started in December1946).62 From these national prosecution phases, we can gain insights into
national narratives of the Pacific War, and analyse the different national
strategies deployed during the Tokyo Trial. The French legacy, as mentioned above, was highly contested due to the former alliance of Vichy
France with Japan until March 1945, and it was one of the achievementsof the French Prosecutor Robert Oneto within the ‘French phase’ of theProsecution to switch this image into the stance of a rightful partner sitting in judgement.63
When addressing the ‘human element’ of a trial, as previously explained, it is important to focus not only on the judges, but also on thelarger team, consisting of the chief prosecutors, the defence counsel, andeven translators and other staff.64 As the French example shows, members
within a national équipe formed competing bodies and interpreted the national role at Tokyo differently. 65 For example, diplomatic staff who
claimed to be merely ‘observing’ were actually ‘supervising’ the legal
body. The Canadian example shows how E.H. Norman, a Japanologist,
became an important member of the team, delivering priceless services
because of his linguistic competence and his inside knowledge of Japanese politics.66 A special case in point for Tokyo is the employment of female attorneys in the prosecution and as legal aides in the defence team.
Scholarship has not yet comprehensively addressed the gender dimensionof Tokyo, as there were several female attorneys on duty at the Tokyo Tribunal: Virginia Bowman, Lucille Brunner, Eleanor Jackson, Helen
Grigware Lambert, Grace Kanode Llewellyn, Bettie Renner, all from the
62
63
64

65
66

Morris, 2018, see above note 49.
Trefalt, 2018, pp. 51-68, see above note 44.
On the role of translators at Tokyo, see Kayoko Takeda, “Trial and Error in the Interpreting System and Procedures at the Tokyo Trial”, chap. 7 below.
Schoepfel, 2018, see above note 43.
Takatori, 2018, p. 164, see above note 33.

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4. The Tokyo Tribunal: A Transcultural Endeavour

United States,67 and the Burma-born Dutch attorney, Coomee StrookerDantra.68 They all worked on various phases of the prosecution’s case andappeared before the Tribunal. It is still undetermined whether, and to what
extent, the employment of female colleagues was a side effect of theshortage of personnel at Tokyo, or a purposeful experiment based on merit.
The fact remains that Tokyo was a pioneer in this regard and thus more
modern than, say, the Nuremberg Tribunal, where women were in largepart employed as stenographers or secretaries only.
Tokyo also saw a mixed defence team: as Japanese attorneys wereacquainted neither with English nor with the legal procedure of AngloSaxon law, which was alien to the Japanese court system, an American
team was sent to assist the defence.69 As Zachmann has pointed out in his
study entitled Loser’s Justice, the team of Japanese and American lawyers
worked remarkably well and addressed many of the weaknesses of the
Tribunal with academic verve (especially the absence of the Emperor as adefendant, but also its failure to address the dropping of the atomicbomb).70
The Tokyo Tribunal faced many jurisdictional challenges, ranging
from charges and their definitions (thereby challenging the Charter itself),71 which are however not the focus of this chapter. Among the controversies was the US decision not to indict the Emperor, which was motivated by political considerations on the stability of Japanese society.72
The dismissal of bacteriological warfare charges was a source of constantfrustration for the Soviet Union, as it had hoped for disclosure of data anddetail. This disappointment later gave the Soviet Union grounds to hold its
own trial on bacteriological warfare in Khabarovsk in 1949. 73 Anotherabsent topic, which seems a failure in retrospect, is the system of sexual
67
68
69

70

71
72
73

See Diane Marie Amann, “Glimpses of Women at the Tokyo Tribunal”, chap. 6 below.
On Stoker-Dantra, see Schouten, 2018, pp. 253-55, see above note 37.
Richard H. Minear, Victors’ Justice: Tokyo War Crimes Trial, Princeton University Press,
1971, p. 23.
Urs Matthias Zachmann, “Loser’s Justice: The Tokyo Trial from the Perspective of theJapanese Defence Counsels and the Legal Community”, in Lingen, 2018, pp. 284-306, seeabove note 2.
See, for details, Boister and Cryer, 2008, pp. 28-48, see above note 2.
Crowe, 2014, pp. 202-05, see above note 16.
Valentyna Polunina, “From Tokyo to Khabarovsk: Soviet War Crimes Trials in Asia as
Cold War Battlefields”, in Lingen, 2016, pp. 239-60, see above note 44.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryslavery, which was only briefly addressed within the Dutch prosecution
phase, which however centred mainly on Dutch female victims. As in Nuremberg, the Tokyo Tribunal was criticized for its representative rather
than comprehensive selection of defendants. The defence grappled withlimited preparation time, language difficulties, inferior translation facilities and logistical issues (such as the shortage of desks, typewriters, paper
and money).74
The most serious challenges came, however, from a discord on thebench. Webb was criticized for his inability to manage the growing dissent amongst the judges, and constantly attacked by the British, New Zealand and Canadian judges.75 Patrick did not hold back in his opinion ofWebb, who, allegedly, did nothing to calm the bench and hold the group
together, but was instead a “turbulent, quick-tempered bully”.76 Webb was
also unhappy about the situation and felt constantly under pressure, according to Morris.77 However, as James Sedgwick has pointed out, “[t]heoverbearing caricature of Webb is so entrenched in the historiography that
it is rarely questioned, let alone explained”.78 While Morris argues that
Webb did what he could in holding the bench together,79 Patrick obviously
resented being subordinate to somebody whom he perceived as not up to
the task. He complained bitterly about Webb’s “bullying” and, at the sametime, his failure to exert enough pressure to secure unanimity on thebench.
When analysing British official documents, another point comes tothe fore, which is the desire to emulate the Nuremberg success story bysimply copying it. This undervalued the different reality in the Pacific, butalso raises the suspicion of whether the aim of ‘justice’ in Asia could havebeen tainted with a shade of colonialism. Obviously, London hoped to
74

75
76
77

78

79

See, for example, IMTFE transcript, pp. 17215, 21825, 42491 (available on the ICC Legal
Tools Database). Also Harries and Harries, 1987, p. 145, see above note 48; Crowe, 2014,p. 209, see above note 16.
Crowe, 2014, pp. 235, 241, see above note 16.
TNA, LC02/2992: Patrick to Normand, no date, probably January 1947.
See Morris, 2018, see above note 49; and Narrelle Morris, “Constructing the Historical
Legacy of the International Military Tribunal for the Far East: Reassessing Perceptions ofPresident William Webb”, chap. 13 below.
James Burnham Sedgwick, “A People’s Court: Emotion, Participant Experiences, and theShaping of Postwar Justice at the International Military Tribunal for the Far East, 1946–
1948”, in Diplomacy & Statecraft, 2011, vol. 22, no. 3, p. 491.
Morris, 2018, pp. 57-58, see above note 49.

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4. The Tokyo Tribunal: A Transcultural Endeavour

achieve a conviction rather than just ‘delivering justice’. Foreign Office
Assistant Undersecretary Esler Dening feared that a divided judgment
would harm Allied prestige in Asia, which was already damaged by the
military debacles in Pearl Harbor and Singapore.80 He summarized:
Here we have a predominantly Western tribunal sitting in the
Far East to try Japanese war criminals. If the tribunal fails to
fulfil its task, Western justice will become the laughing-stock
not only of Japan but of the Far East in general.81

In this regard, the Tokyo Tribunal appeared to be the last opportunity to show the world, especially the former adversaries of the WesternStates in Asia, the supremacy of Western values and its military and legal
strength.
4.6. Fields of Friction
Six fields of friction can be observed upon scrutinizing the human elements of the trial. Problems ranged from daily routine to the feeling ofotherness, from questions of language protocol (and thus hierarchy) totranslation difficulties, from American or British dominance of the court’s
preparation to Webb’s conduct of the trial.
First, judges were affectedly differently by the daily challenges ofliving away from home. Issues ranged from accommodation to the very
unstable postal delivery and thus difficulties to keep contact with family
and friends at home. They resented the absence of their wives and thetravel ban to visit home, which was a real burden for a majority of judges(exceptions were only granted to Webb and Jaranilla, who lived in Tokyo
with their wives, and Pal, who managed frequently to return home for judicial duties).
The longer the trial lasted, the more unbearable daily flaws became:the poor quality of translation of the trial, as well as questions of procedure, in particular absences from the bench. The sheer length of the trial
was a problem, and the time required for translation as well as for forminga strategy altogether to handle the material. Another problem resulted
from the linguistic discord within the team of 11 judges, of whom at least
two (Bernard and Zaryanov) did not speak a word of English, while others
were not fluent. All of these factors hindered a smooth exchange of ideas
80
81

Sellars, 2011, p. 177, see above note 26.
TNA, FO 371/66552 Dening to Sargent, 30 April 1947.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

and positions.82 Zaryanov complained to Moscow not only on the poor
English training provided to Soviet interpreters, but also that he could notcommunicate with other judges directly, as he feared this hampered his
legal authority.83 As an exception, Russian and French were permitted to
be used in court, but only during the respective national prosecution phases. The language problem was perpetuated going down the ranks within
the national teams. Interestingly, however, it was in reverse order, as thelower ranks often proved more fluent in English than the judges and prosecutors; some even spoke Japanese.
Even more concerning was the lack of a deputy judge system,
which would help during the absence of the main judge. In Nuremberg,
every State could nominate two judges; at Tokyo, only one each. The Tokyo Charter provided that six members were enough to convene the Tribunal, and a majority of all members constituted a quorum.84 However, arecurring cause for complaint has been the repeated absences of judges
from the trial, especially in times when the defence presented the case
(Webb as well as Pal returned home for court duties, but seem to be theonly ones who were granted such exceptions). Defence attorney Owen
Cunningham, in his 1948 critique of the trial,85 counted that out of 466
days of the Tokyo Tribunal, Webb was absent for 53 days and Pal 109
days.86 James Sedgwick concludes:
By skipping court time, judges elevated personal motives
over national and judicial responsibilities. Absences also reveal a distinct prejudice against the defence case. […] Inpractice, this policy amounted to clear bias when judges
missed disproportionately large portions of the defence case.
Of the 438 workdays missed by judges, 333 came during thedefence phase.87

Although we do not know whether personal motives to escape thelengthy and sometimes dull proceedings prevailed, or if judges were con82
83
84
85

86
87

Crowe, 2014, p. 209, see above note 16.
Polunina, 2018, p. 131, see above note 57.
Boister and Cryer, 2008, p. 27, see above note 2.
Owen Cunningham submitted a paper to the American Bar Association in 1948, entitled“The Major Evils of the Tokyo War Crimes Trial”, Seattle, 1948, cited in Boister and Cryer, 2008, p. 60, see above note 2.
Harries and Harries, 1987, p. 149, see above note 48.
Sedgwick, 2011, p. 491, see above note 78.

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4. The Tokyo Tribunal: A Transcultural Endeavour

cerned about the smooth running of the courts at home, the result was thatthe trial was not balanced between prosecution and defence, as was also
underlined by Minear,88 Dower89 and Pritchard.90
Second, the drafting of the indictment and judgment became a pointof friction between the prosecutors involved, as did procedural questionsof the trial, especially the heavy emphasis in the US strategy on the chargeof ‘crime of aggression’ and Japan’s alleged violation of international
treaties.91 This also had side-effects. As Boister has noted,92 the focus onaggression gave the US team the opportunity to pursue other goals, as forexample the prohibition of the opium trade in Asia. It has been widely
overlooked that the US team launched a fierce campaign during the Tokyo
Trial to prove that Japan had waged a war of aggression by drugging the
Chinese people and breaking their resistance. The ‘Group One’ counts ofcrimes against peace, which charged “wars of aggression” and “wars inviolation of international law, treaties, agreements and assurances”93 contained an Appendix A, expanded on the aggression in China.94 It made anumber of allegations crucial to the prosecution’s argument about opium
control. Firstly,95 the Japanese had
pursued a systematic policy of weakening the native inhabitants will to resist […] by directly and indirectly encouraging
increased production and importation of opium and other

88

89

90

91

92

93

94
95

Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial, University of Michigan,
Michigan, 2001.
John W. Dower, Embracing Defeat: Japan in the Wake of World War II, W.W. Norton &Co., New York, 1999.
R. John Pritchard, “The Historical Experience of British War Crimes Courts in the Far
East, 1946-1948”, in International Relations, 1978, vol. 6, pp. 311-26.
On the US strategy, see David M. Crowe, “MacArthur, Keenan and the American Quest
for Justice at the IMTFE”, in Lingen, 2018, pp. 65-83, see above note 2.
The following statements are based on Neil Boister, “Colonialism, Anti-Colonialism and
Neo-Colonialism in China: The Opium Question at the Tokyo War Crimes Tribunal”, in
Lingen, 2016, pp. 25-50, see above note 44.
See, for example, Count One, The Indictment is reproduced in Neil Boister and Robert
Cryer (eds.), Documents on the Tokyo International Military Tribunal: Charter, Indictment
and Judgments, Oxford University Press, 2008, p. 16.
Section 4, see Boister and Cryer, 2008, p. 37, see above note 93.
The following is based on Mikkel Jarle Christensen and Neil Boister (eds.), “New Perspectives on the Structure of Transnational Criminal Justice”, in Brill Research Perspectives on
Transnational Crime, 2018, vol. 1, no. 2-3, p. 29.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

narcotics and by promoting the sale and consumption of suchdrugs among such people.

Secondly,revenue from the above mentioned traffic in opium and othernarcotics was used to finance the preparation for and wagingof the wars of aggression […] and to establish and financethe puppet governments set up by the Japanese Government
in the various occupied territories.

Thirdly, the Japanese Government
was actively participating in the proceedings of the Leagueof Nations Committee on Traffic in Opium and other Dangerous Drugs and profess[ing] […] to the world to be cooperating fully with other member nations in the enforcement of treaties governing traffic in opium and other narcotics to which she was a party.

By 1943, the United States was viewed as the guardian of order in postwar Asia and its explicit policy was to dismantle the colonial opium monopolies. 96 The picture in Taiwan and Northern China, or Manchukuo,
was in reality far more complicated, but contradictory evidence was omitted or rejected by the US prosecution. Boister summarizes:[T]hrough a symbolic prosecution of Japan (rather than a legal prosecution of the accused on trial), the Tribunal wasused to inscribe the social policy of drug prohibition and isolate the world against other possible ways of dealing withthis particular social problem.97

A third point of friction at the Tokyo Trial was the clash of legal
cultures, not only between Western and ‘non-Western’ ones, but also within European traditions of law, such as between European civil law andAnglo-Saxon common law traditions. The French judge, Henri Bernard,
for example, followed argumentation based on natural law.98
There was also friction within the English-speaking bloc, mainly on
the strategic aims of the trial. Not only was the question of whether to indict the Emperor highly controversial, as we have seen, but also the American strategy of focusing, as in Nuremberg, on the notion of ‘crimes
96

97
98

William O. Walker III, Opium and Foreign Policy: The Anglo-American Search for Orderin Asia 1912–1954, University of North Carolina Press, Chapel Hill, 1991, pp. 153-56.
Christensen and Boister, 2018, p. 49, see above note 95.
See Schoepfel, 2018, see above note 43.

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against peace’ was challenged. It became obvious that legal issues had notbeen solved; some legal issues continued to excite debate, especially the
discussion of conspiracy to commit ‘crimes against peace’, which dragged
on for almost a year.99
Another problematic issue was the alleged bias of judges who had
personal experiences in the Pacific War (such as Webb, Cramer, Zaryanov
and Jaranilla).100 Jaranilla was a survivor of the ‘Bataan Death March’ andthus personally inflicted by a Japanese war crime on prisoners of war,101
whilst Webb had been the Australian rapporteur on war crimes during thewar.
Still more problematic was the lack of an overall and joint strategy,
which resulted in an unbalanced trial conduct, as well as a distorted space
to manoeuvre its outcome, threatening the overall mission to bring about‘justice’.
A fourth point concerns the conduct of the trial. As discussed earlier,Webb was criticized for being unable to moderate the competing interestsand legal approaches of the group of 11 judges. Sentencing ended in a fiasco. A majority judgment was drafted under of Patrick, with Cramer, Jaranilla, MEI and Zaryanov joining in. The remaining judges formulated
concurring or dissenting opinions (Pal, Röling, Bernard). In December
1948, the sentences were handed down, and all Japanese leaders were
found guilty of one or more charges. Seven of the accused were condemned to death, 16 more were given life sentences. Sellars surmises thatthe secret votes against capital punishments were from Webb, Pal, Bernard and Zaryanov (the Soviet Union having temporarily abolished capital
punishment).102
Fifth, the trial was further hampered by technical issues and questions related to status. Holding the only microphone on the bench, Webb
was the only one of 11 judges who could intervene or pose questions.103
Judging from the work environment, translation difficulties seem to havebeen the gravest burden for prosecution and defence alike. A complaint by
the Canadian judge McDougall from March 1947 reveals a constant99

Sellars, 2011, p. 184, see note 26.
Boister and Cryer, 2008, pp. 83-84, see above note 2.
101 For details, see Nagai, 2018, see above note 18.
102 Sellars, 2011, p. 192, see above note 26.
103 Morris, 2018, p. 45, see above note 49.
100

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shortage of translators, the slow process of translating documents (which
took two days for a short letter), and the lack of overall organization in thetranslation section. 104 Additionally, the New Zealand judge Northcroft
criticized the bad quality of the American counsel and their lack of prosecutorial strategy, summarizing that “[t]he degree of disorganization […] is
disturbing”.105 The result was a lot of time wasted, on both the prosecution’s and the defence’s sides, on irrelevant material. A special case inpoint were issues related to status, which were especially prominent with
the Chinese judge MEI, who complained about the seating order at thebench as well as on his car number plate, which in his views failed to reflect his high status.106
The final field of friction was individual problems, such as loneliness, and the formation of alliances behind the scenes, as Sedgwick underlines.107 The socializing aspect of the trial, which reveals friendships aswell as animosities, is an upcoming field of research. Dutch Judge Röling
and Dutch attorney Strooker have provided accounts about dinner parties
and touristic trips around Japan, for which people would usually assemble
into groups. For example a ‘prosecution team trip’ to Mount Fuji saw theDutch, American and Chinese members travelling.108 As Brackman notes,“[a]lthough the judges isolated themselves from the prosecutors and defense lawyers, in the close foreign community in occupied Tokyo, it wasinevitable that they socialized to some extent”.109 Further, visual evidence
such as press photographs shows, for example, how the Soviet teamseemed particularly integrated in all these endeavours, Zaryanov being acheerful guest in many dinner parties. This hints at a kind of professionalcomradeship in Tokyo between the foreign judges and prosecutors beyond
emerging Cold War realities.

104

TNA, LCO 2/2992, Memorandum to all members of the tribunal from McDougall, 27
March 1947.
105 TNA, LCO 2/2992, Letter from Northcroft to Chief Justice, 28 March 1947.
106 Bihler, 2018, see above note 23.
107 James Burnham Sedgwick, “Building Blocs: Communities of Dissent, Manufactured Majorities and International Judgement in Tokyo”, in Lingen, 2018, pp. 29-43, see above note 2.
108 Schouten, 2018, p. 255, see above note 37.
109 Brackman, 1987, p. 67, see above note 1.

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4. The Tokyo Tribunal: A Transcultural Endeavour

4.7. Conclusion
The political context, formed by old wartime alliances, new frictions andCold War realities, was highly complex, and resulted in the delay and difficulties which obscures the Tokyo legacy even today. The trial was seen
as a failure due to its legal discord and the claim that the judges and legal
staff were ‘less experienced’ than those at Nuremberg. This criticism isunfounded, as we have seen. Many governments struggled hard to find thebest candidates possible, as they saw it of high political value to be sitting
on the international bench. However, especially within the smaller nations,suitable personnel were either not abundant or suffered poor health due tointernment and other war services rendered.
At the same time, the Tokyo Tribunal was remarkable as transcultural encounters at the crossroads of Europe, the United States, the Soviet
Union, Australia and East, South-East and South Asia left their mark anddeveloped a certain dynamic during the proceedings. There is a strong
feeling of commitment and even ‘duty’ involved when studying the transcultural history of the Tokyo Tribunal. Whilst some judges underscoredtheir independence by voicing dissenting judgments, others were anxious
to keep the bench as united as possible, so as to reinforce the legacy ofinternational tribunals as a whole and of Tokyo in particular. Overall,judges and lawyers in Tokyo were constrained to varying degrees by theirrespective national policies on the one hand and their legal training andexperiences on the other. But they all expressed powerful independent
opinions on basic questions of their individual perceptions of legal ethics,
as we see, for example, with Bernard’s and Pal’s emphasis on natural law.
This transcultural learning system enabled many of the staff present
at Tokyo to later enrol with the emerging international institutions, especially within the UN system. The Tokyo Tribunal gave them possibilities
to enrich their knowledge of the functioning of large international courts,
and form something which could be termed ‘legal flows’, which has left
its marks on international criminal courts as we know them today.

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Jurisprudence as Illustrated byIts Treatment of Sexual Violence
Diane Orentlicher*
5.1. Introduction
When my generation of international legal scholars came of age, efforts toresearch the International Military Tribunal for the Far East (‘IMTFE’)turned up remarkably few resources, at least in the English-language literature. Those we found invariably began by noting how little attention the
Tribunal had received compared to the International Military Tribunal(‘IMT’) in Nuremberg. 1 And when legal scholars did acknowledge theTokyo Tribunal, they typically did so by adding “and Tokyo” to their reflections on Nuremberg’s legal legacy.2 Thus in the legal academy as in

*

1

2

Diane Orentlicher is Professor of Law at the Washington College of Law of American
University. Professor Orentlicher, the author of Some Kind of Justice: The ICTY’s Impact
in Bosnia and Serbia (Oxford University Press, 2018), has published and lectured extensively in the fields of international criminal law and transitional justice. As the United Nations Independent Expert on combating impunity, she updated the UN Set of principles forthe protection and promotion of human rights through action to combat impunity (E/CN.4/
2005/102/Add.1). Professor Orentlicher served as Deputy for War Crimes Issues in the US
Department of State from 2009 through 2011. Chase Dunn, Kara Kozikowski, and William
Ryan provided invaluable research assistance for this chapter.
This oft-noted point is captured in the title of a book by Arnold C. Brackman: The Other
Nuremberg: The Untold Story of the Tokyo War Crimes Trials, William Morrow & Co.,New York, 1987. See also R. John Pritchard, “The International Military Tribunal for the
Far East and Its Contemporary Resonances: A General Preface to the Collection”, in R.
John Pritchard (ed.), The Tokyo Major War Crimes Trial: The Records of the International
Military Tribunal for the Far East, The Edwin Mellen Press, 1998, vol. 2, p. xxi, notingthat scholars have studied the Tokyo trial proceedings “only rarely and even then, […]generally superficially” (‘Tokyo Trial Records’). While I have cited volume 2 here,
Pritchard’s “General Preface” appears in each volume of this collection.
See, for example, M. Cherif Bassiouni, “Nuremberg Forty Years After: An Introduction”,
in Case Western Reserve Journal of International Law, 1986, vol. 80, no. 2, pp. 61-64.

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other disciplines, the Tokyo Tribunal was widely treated as “a sister institution, nothing more”.3
In consequence, the Tribunal’s distinctive contributions to the field of international criminal law were long obscured, with important exceptions tobe sure. Writing as recently as 2010, one scholar noted that some experts
in this field “completely overlook the IMTFE’s existence” or misstated
key features of its operation and legacy.4 This is notable. After all, the Tribunal played a foundational role in international criminal law, a field
whose explosive growth in the early 1990s was one of the signal developments in international law in the latter half of the twentieth century.
What, then, accounts for legal scholars’ relative neglect of the Tokyo Tribunal? This chapter explores several key reasons, and then considers how
the resulting gap in knowledge diminished the generally rich body ofscholarship in the field of international criminal law.
5.2. Accounting for Legal Scholars’ Relative Neglect
One factor behind this general neglect is that the legal framework of theTokyo Tribunal was derivative (though by no means a carbon copy) of thelaw of the IMT, as Section 5.3. elaborates. Accordingly, many saw the Tokyo proceedings as “little more than an echo of the far more famous proceedings held at Nuremberg”.5
Compounding this perception, the IMTFE concluded its work two
years after the IMT issued its historic judgment. Recalling that the Nuremberg Trial “began quite soon after the end of the war, and it did notlast very long”, a former judge on the IMTFE noted the obvious and important consequence: this timing substantially elevated global awarenessof the IMT relative to the Tokyo Tribunal.6 At least among Western scholars, then, it was natural to focus on Nuremberg when constructing narratives of international law’s historic post-war shift to principles of individual responsibility for crimes under international law.
3

4

5

6

Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial andthe Nuremberg legacy, Routledge, 2008, p. 9.
Zachary D. Kaufman, “The Nuremberg Tribunal v. The Tokyo Tribunal: Designs, Staffs,
and Operations”, in John Marshall Law Review, 2010, vol. 43, pp. 753-54.
These words come from an unidentified source quoted in Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951, University of Texas
Press, Austin, 1979, p. 9.
B.V.A. Röling, “Introduction”, in Chihiro Hosoya et al. (eds.), The Tokyo War Crimes
Trial: An International Symposium, Kodansha International, New York, 1986, p. 16.

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Another contributory factor was the Tokyo Tribunal’s perceived lack of‘international’ representation. Despite the participation of judges from 11
countries, the IMTFE has long been perceived to be less ‘international’
than the IMT, whose judges and chief prosecutors came from four countries. To be sure, this view is hardly uniform. Some argue, for example,
that the greater diversity of States participating in the Tokyo Tribunal enhanced its legitimacy.7 Yet for reasons elaborated in Section 5.3., many
have seen the IMTFE as a fundamentally American enterprise.
Crucially as well, concerns about the fairness and independence of
the Tokyo Trial have coloured the way legal scholars construct its legacy.8
This stands in marked contrast to how most international law experts haveconstructed the legacy of Nuremberg, which has been widely embraced asa “spectacular success”9 despite concerns that the IMT embodied victors’
justice and imposed retroactive punishment.
Recent scholarship has questioned whether the Tokyo Tribunal’s
acknowledged flaws were of a fundamentally different order than thoselong associated with Nuremberg, or at any rate were as extreme as haslong been supposed.10 While that inquiry is beyond the scope of this chapter, it is relevant here to note a third factor behind generally harsh assessments of the IMTFE: vocal critics of the Tokyo Tribunal included key participants in its proceedings. This phenomenon was famously exemplified
in Judge Radhabinod Pal’s blistering dissent,11 but it was not just Pal who
faulted core features of the IMTFE. In his dissenting opinion, Judge Henri
Bernard averred: “A verdict reached by a Tribunal after a defective procedure cannot be a valid one”.12 For many years, moreover, a scathing in-

7
8

9

10

11

12

See, for example, Pritchard, 1998, vol. 2, p. xxxi, see above note 1.
See Futamura, 2008, p. 60, see above note 3; Lachezar D. Yanev, Theories of CoPerpetration in International Criminal Law, Brill/Martinus Nijhoff, 2018, pp. 109-15.
Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals,
Princeton University Press, Princeton, 2000, p. 147.
See, for example, Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the
Wake of World War II, Harvard University Press, Cambridge, 2008.
Although Pal’s judgment was not read in court, it was reported in the Nippon Times alongwith other judgments; Neil Boister and Robert Cryer, The Tokyo International Military
Tribunal: A Reappraisal, Oxford University Press, Oxford, 2008, p. 324 n. 183.
Dissenting Judgment of the Member from France (Henri Bernard), Tokyo Trial Records,
vol. 105, p. 20 (of Bernard’s judgment), see above note 1.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

dictment of the Tribunal published in 1971 “seemed to define the field”.13
Tellingly, its author acknowledged that his “major concern in writing [his]book” was “to demolish the credibility of the Tokyo trial and its verdict”.14
For decades, moreover, scholars who may have wished to explore
the Tokyo proceedings faced practical challenges. While the Nuremberg
judgment and proceedings were quickly published by the British andAmerican governments, the Tokyo judgment and records were never officially published, and were available commercially only decades after thetrial ended.15
In the section that follows, I elaborate on two points noted above:
the relatively scant attention paid by international legal scholars to the
IMTFE derives, in significant part, from a longstanding perception that itwas (1) derivative of Nuremberg, and yet (2) an essentially American institution rather than a truly international tribunal.
5.3. An Echo of Nuremberg and an American Show
5.3.1. Early Planning for Post-war Prosecutions
Early planning for post-war prosecutions laid the seeds for perceptions ofTokyo as “an echo of […] Nuremberg”.16 Allied leaders’ early statements
about wartime depredations warranting punishment focused overwhelmingly on Nazi crimes, though some dealt with Japanese offences.17 The
United Nations War Crimes Commission (‘UNWCC’), which was established in October 1943, at first focused solely on Axis war crimes; in May
1944, however, it established a sub-commission to address war crimes in
Asia and the Pacific.18 Only in late August 1945 did the UNWCC publish
13

14

15
16
17

18

Gerry Simpson, “Writing the Tokyo Trial”, in Yuki Tanaka, Tim McCormack, and Gerry
Simpson (eds.), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited, Martinus
Nijhoff, Leiden, 2011, p. 29.
Richard H. Minear, Victors’ Justice: Tokyo War Crimes Trial, Princeton University Press,
Princeton, 1971, p. ix.
Boister and Cryer, 2008, p. 325, see above note 11.
Piccigallo, 1979, p. 9, see above note 5.
See Boister and Cryer, 2008, pp. 17-19, see above note 11; Solis Horwitz, “The Tokyo
Trial”, in International Conciliation, 1950, vol. 28, pp. 477-79; Minear, 1971, p. 8, seeabove note 14.
See Ustinia Dolgopol, “Knowledge and Responsibility: The Ongoing Consequences ofFailing to Give Sufficient Attention to the Crimes Against The Comfort Women In The
Tokyo Trial”, in Tanaka, McCormack, and Simpson, 2011, p. 249, see above note 13.

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5. The Tokyo Tribunal’s Legal Origins and Contributions toInternational Jurisprudence as Illustrated by Its Treatment of Sexual Violencea white paper recommending that suspected Japanese war criminals be“surrendered to or apprehended by the United Nations for trial before aninternational military tribunal”.19
Similarly, wartime warnings of post-war trials focused at first on
Germany. Although a definitive plan to establish the IMT would comelater, the United States, the United Kingdom and the Soviet Union laid
down a marker in November 1943, when the three countries’ leaders issued the Moscow Declaration warning that Germans responsible foratrocities would face post-war punishment. 20 Preparations for post-war
prosecutions in Nuremberg were well underway by the time the three major allies in the war with Japan – China, the United Kingdom and theUnited States – declared their general intentions concerning post-war
prosecutions of Japanese. The Potsdam Declaration of 26 July 1945, later
endorsed by the Soviet Union, stated that “stern justice shall be meted out
to all [Japanese] war criminals, including those who have visited cruelties
upon our prisoners”.21
Inevitably, too, the legal framework for Nuremberg was adopted
first, and provided a model for Tokyo – a key factor behind the previously-noted “and Tokyo” thread in legal scholarship. The US government did
not begin drafting a Tokyo prosecution policy in earnest until 9 August
1945,22 the day after the Nuremberg Charter was adopted. As a participant
in the Tokyo proceedings recalled, those who drafted “the Tokyo Charter
took full advantage of the work of their predecessors in London, and to
avoid substantial differences in carrying out related programs, followed as
closely as possible the Nuremberg Charter”.23

19

20

21

22
23

Hisakazu Fujita, “The Tokyo Trial: Humanity’s Justice v Victors’ Justice?”, in Tanaka,
McCormack, and Simpson, 2011, pp. 5-6, see ibid. (quoting UNWCC, Draft Summary of
Recommendations concerning Japanese War Criminals and Atrocities).
Moscow Declaration on Atrocities by President Roosevelt, Mr. Winston Churchill andMarshal Stalin, 1 November 1943 (https://www.legal-tools.org/doc/3c6e23/).
Proclamation Calling for the Surrender of Japan, United States-China-United Kingdom,
Potsdam, 26 July 1945, para. 10 (https://www.legal-tools.org/doc/f8cae3/).
See Totani, 2008, p. 21, see above note 10.
Horwitz, 1950, p. 486, see above note 17.

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5.3.2. American Leadership in London and Domination in Tokyo
As is well known, the United States was the driving force behind the ideaof prosecuting Nazi war criminals once the war ended. 24 Early on, theUnited Kingdom favoured executing the principal Axis leaders; Stalin
proposed shooting thousands.25 In this setting, the United States had topersuade its allies to accept its vision.
The United States also took the lead in developing one of Nuremberg’s central innovations – criminalizing the planning, preparation, initiation and waging of wars of aggression, which the Nuremberg and Tokyo
Charters termed “crimes against peace”. On this point, too, the UnitedStates had to persuade reluctant allies to go along. Doing so was a major
focus of US diplomacy, under the leadership of Justice Robert H. Jackson,
when the four Allied powers met in London to negotiate the Nuremberg
Charter.26 Only after weeks of difficult negotiations was Jackson able toovercome the strenuous resistance of the French and Soviet delegates.27
When participants in the London Conference adopted the Nuremberg
Charter on 8 August 1945, they included this novel crime in the Tribunal’s
subject-matter jurisdiction, along with conventional war crimes and another legal innovation, crimes against humanity.28
When applied to Nazi atrocities against German citizens, the last
crime represented a profound rupture with bedrock principles of international law, which had long deemed outside its regulatory remit the way agovernment treated its own citizens in its own territory. Partly for this reason, the Nuremberg Charter specified that crimes against humanity could
be prosecuted only when committed “in execution of or in connection

24

25

26
27
28

See Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia,
Oxford University Press, New York, 2018, p. 432, n. 16.
See Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, Alfred A.
Knopf, New York, 1992, pp. 29-32; Bass, 2000, p. 147, see above note 9. Before he waspersuaded to pursue post-war prosecutions, President Franklin Roosevelt too was sympathetic to the idea of summarily executing Nazi leaders. See ibid.
See Totani, 2008, p. 21, see above note 10.
See ibid.
Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945 for the Prosecution and Punishment of Major War Criminals of the European
Axis, 8 August 1945, Article 6 (‘Nuremberg Charter’) (https://www.legal-tools.org/doc/
64ffdd/).

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with” one of the other crimes set forth in the Charter,29 which by their nature entailed inter-State armed conflict.
The joint adoption of the Nuremberg Charter at the conclusion ofmultilateral negotiations and the adherence to that instrument by 19 otherStates, along with organizational matters that are discussed later, meantthat Nuremberg would be widely seen and celebrated as a multilateralproject despite its origins in American planning and its debt to American
persistence. The process culminating in the promulgation of the Tokyo
Charter was markedly different.
The first draft of the Tokyo Charter “was drawn up, in its entirety,by the United States”.30 While this draft was amended to accommodate
the views of US allies,31[i]t was made abundantly clear to the Allied Powers that theSupreme Commander [of occupied Japan, U.S. General
Douglas MacArthur,] and the United States Government
were determined to go ahead with the Tribunal on American
terms. This train was going to depart whether or not the other
United Nations chose to go along for the ride. The result wasthat the Allied Powers […] fell in step with General MacArthur’s diktat […].32

The United States did not share its key policy document for prosecutions in Japan with Allied governments until well into October 1945,33
29
30
31

32
33

Ibid., Article 6(c)Horwitz, 1950, p. 483, see above note 17.
The original Charter, promulgated on 19 January 1946, provided for the appointment of“not less than five nor more than nine Members”. Charter of the International Military Tribunal for the Far East, Article 2, in General Orders No. I, General Headquarters Supreme
Commander for the Allied Powers, 19 January 1946. The Charter was amended to allow
for up to eleven members so that India and the Philippines, which had not signed the instrument of surrender but had fought against Japan, could nominate judges and prosecutors.
See Charter of the International Military Tribunal for the Far East, Article 2, in General
Orders No. 20, General Headquarters Supreme Commander for the Allied Powers, 26
April 1946; TIAS No. 1589, 4 Bevans 20 (‘Tokyo Charter’) (https://www.legal-tools.org/
doc/44f398/).
Pritchard, 1998, vol. 2, p. xxvii, see above note 1.
Totani, 2008, pp. 21, 26, see above note 10; Boister and Cryer, 2008, p. 23, see above note
11. According to Solis Horwitz, a US member of the prosecution staff, a directive ordering
the investigation, apprehension and detention of suspected war criminals, which was issued on 21 September 1945, was “approved by all nations taking part in the occupation ofJapan”. Horwitz, 1950, p. 480, see above note 17. But Horwitz did not clearly state whether these countries approved of the directive before it was issued.

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weeks after Japan surrendered and General MacArthur had arrived in Tokyo to take up his post as Supreme Commander for the Allied Powers inJapan. By that time, the arrests of suspected Japanese war criminals by
Americans were well underway.34 And while the Nuremberg Charter was
jointly promulgated by four countries, the Tokyo Charter was issued
through the unilateral action of General MacArthur.35
5.3.3. Legal Frameworks: Derivation and Difference
Although strongly influenced by the IMT Charter, the text of the Tokyo
Charter was by no means an exact replica. While the first point may have
obscured Tokyo’s legal innovations, key differences detracted from the
IMTFE’s legal legacy (though these were hardly the most important factors behind critical assessments of Tokyo). Even where the two charters
were in sync, the taint of retroactive justice has clung more tenaciously to
the Tokyo Tribunal than its counterpart in Nuremberg.
The IMTFE’s debt to Nuremberg is particularly evident in Article 5of the Tokyo Charter, which sets forth the Tribunal’s subject-matter jurisdiction. Like the IMT, the Tokyo Tribunal had jurisdiction over crimes
against peace, as well as participation in a common plan or conspiracy tocommit them; conventional war crimes; and crimes against humanity. The
Tokyo Charter’s definitions of these crimes largely followed, but were not
identical to, those in the Nuremberg Charter. For example, instead of including examples of war crimes, as the Nuremberg Charter had done, theTokyo Charter more succinctly included the category of “Conventional
War Crimes: Namely, violations of the laws or customs of war”.36
34
35

36

See Brackman, 1987, p. 10, see above note 1.
The Far Eastern Commission (‘FEC’), comprising representatives of ten countries that had
fought against Japan, was empowered to take decisions that would be transmitted to MacArthur as directives. While its input resulted in amendments to the first version of theCharter promulgated by MacArthur, the FEC largely accepted the US policy on prosecutions in Tokyo. Horwitz, 1950, pp. 481-82, see above note 17.
Tokyo Charter, 26 April 1946, Article 5(b), see above note 31. The corresponding provision in the Nuremberg Charter reads:
WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation to slave labor or for
any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder ofpublic or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity[.]
Nuremberg Charter, 8 August 1945, Article 6(b), see above note 28.

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The Tokyo Charter’s definition of crimes against humanity diverges
from its precursor more substantially. In the Nuremberg Charter, crimes
against humanity were defined as certain inhumane acts “committed
against any civilian population” when other conditions are present.37 Justdays before the Tokyo Trial began, the phrase “against any civilian population” was removed from the definition of crimes against humanity set
forth in the original Charter proclaimed by General MacArthur. The
amendment was suggested by Joseph Keenan, the American Chief Prosecutor in Tokyo, who wanted to establish that any killing – even of combatants – in the prosecution of a war of aggression is unlawful.38 The altered definition left scant if any international legal legacy. No one wasconvicted of crimes against humanity in Tokyo,39 and the definition of thiscrime in the amended Tokyo Charter has not been followed in the statutesof other international criminal tribunals.
Turning to crimes against peace, the definition in the Tokyo Charter
largely tracked its precursor in the Nuremberg Charter, but added the text
italicized below:
Crimes against Peace: Namely, the planning, preparation,
initiation or waging of a declared or undeclared war of ag37
38

39

Ibid., Article 6(c), see above note 28.
B.V.A. Röling and Antonio Cassese, The Tokyo Trial and Beyond, Polity, Cambridge,
1993, pp. 56-57. The prosecution did not rely solely on the charge of crimes against humanity to advance this claim. Instead, it linked murder charges to all three crimes fallingwithin the IMTFE’s subject-matter jurisdiction. The Majority Judgment side-stepped ruling on this novel claim. For a detailed discussion of the murder counts, see Boister andCryer, 2008, pp. 154-74, see above note 11.
In another departure from the Nuremberg Charter, which defined “Crimes against Humanity” to include “persecutions on political, racial or religious grounds”, Nuremberg
Charter, 8 August 1945, Article 6(c), see above note 28, the corresponding phrase in theTokyo Charter omitted the word “religious”, recognizing only “persecutions on political or
racial grounds”. Tokyo Charter, 26 April 1946, Article 5(c), see above note 31. In addition,
the Tokyo Charter did not include any provision authorizing the Tokyo Tribunal to declarean organization or group a “criminal organization”, as the IMT was authorized to do. Nuremberg Charter, 8 August 1945, Article 9, see above note 28.
The Tokyo indictment grouped war crimes and crimes against humanity together under theheading “Group Three: Conventional War Crimes and Crimes against Humanity”. The
three counts listed under this heading emphasized violations of the laws of war, as did thefurther specifications of these violations in Appendix D. The Judgment dealt with atrocity
crimes solely under the rubric of violations of the laws of war, presumably because theprosecutors who took the lead on the atrocities charges did not develop clear arguments
about crimes against humanity. See Yuma Totani, “The Case against the Accused”, inTanaka, McCormack and Simpson, 2011, p. 154, above note 13.

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gression, or a war in violation of international law, treaties,
agreements or assurances, or participation in a common planor conspiracy for the accomplishment of any of the foregoing[.]40

In a further departure from Nuremberg, the Tokyo Charter allowed for theprosecution of individuals only when they were “charged with offenses
which include Crimes against Peace”.41 This limitation reflected the US
government’s position, set forth in its previously-noted policy paper, thatthe investigative body in Tokyo “should attach importance” to crimes
against peace. 42 In fact, the United States apparently proposed that the
IMTFE have jurisdiction only over crimes against peace, but agreed toinclude the other two crimes in the Tribunal’s remit at the insistence of theUnited Kingdom.43
Despite this accommodation, at one point in the trial Keenan proposed to shorten or even drop the prosecution’s presentation of war crimes
evidence, which would leave the Tribunal to rule only on evidence relating to crimes against peace. Keenan’s suggestion drew strong objections
from other Allied prosecutors, who prevailed.44 This, Yuma Totani writes,
enabled “voluminous” evidence of Japanese atrocities to become part of
the Tokyo Trial and historical record.45
As to organizational matters, key differences between the Nuremberg and Tokyo Charters underscored American dominance in Tokyo(though, as already suggested, participants from other countries significantly influenced the conduct and legacy of the trial). The Nuremberg
40

41
42
43
44
45

Tokyo Charter, 26 April 1946, Article 5(a), see above note 31. Totani suggests that thewords “declared or undeclared” were introduced to clarify the irrelevance of a formal declaration in light of the fact that Japan had initiated some armed attacks without prior warning or formal declaration: Totani, 2008, p. 81, see above note 10; Boister and Cryer emphasize the inverse: introducing the phrase clarified “that compliance with the formal requirements for the declaration of war in international law did not deprive a war of its criminal nature if it was aggressive”: Boister and Cryer, 2008, p. 120, see above note 11. The
separate addition of “law” after “international” sought to avoid any ambiguity regardingwhether international law criminalized aggressive war: Totani, 2008, p. 81, see above note
10. In Totani’s view, this position “had been the view of the planners of the Nuremberg
tribunal, but it did not attain its full expression in the Nuremberg Charter”. Ibid.
Tokyo Charter, 26 April 1946, Article 5, see above note 31.
Totani, 2011, p. 148, see above note 39.
Boister and Cryer, 2008, p. 25, see above note 11.
Totani, 2011, p. 153, see above note 39.
Ibid.

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Charter accorded each of the four signatories the right to appoint one
judge and one alternate.46 In contrast, the Tokyo Charter vested General
MacArthur with exclusive authority to appoint the Tribunal’s judges—
albeit, and by no means incidentally, from those whose names were submitted by the nine signatories to the Instrument of Surrender as well as
India and the Philippines.47 And where the Nuremberg Charter provided
for the four judges to select their own President,48 the Tokyo Charter provided for the Supreme Commander to appoint the President of the IMTFE.49
In reality, MacArthur exercised less authority over the Tokyo Tribunal than he seemed to possess in its Charter. As Totani notes, MacArthur
did not really have the option of rejecting participating countries’ judicial
nominees.50 That he hardly controlled the Tribunal is, moreover, amply
demonstrated by the splintered opinions of its judges, including Judge
Pal’s comprehensive dissent.51 Nevertheless, the concentration of authority in MacArthur is fundamental to perceptions of Tokyo as an American
tribunal, as well as to concerns about its independence.
Just as the IMT Charter accorded each signatory the right to appoint
a judge and an alternate, it also gave each the right to appoint a Chief
Prosecutor. 52 In contrast to the equal status of Nuremberg’s four Chief
Prosecutors, the Tokyo Charter provided for the Supreme Commander to

46
47
48
49

50
51

52

Nuremberg Charter, 8 August 1945, Article 2, see above note 28.
Tokyo Charter, 26 April 1946, Article 2, see above note 31.
Nuremberg Charter, 8 August 1945, Article 4(b), see above note 28.
Tokyo Charter, 26 April 1946, Article 3(a), see above note 31. In addition, while Article
29 of the Nuremberg Charter vested responsibility for carrying out and potentially reducing sentences in the Control Council for Germany, which comprised the same four Statesthat created the Tribunal, Article 17 of the Tokyo Charter vested this authority in the Supreme Commander for the Allied Powers in Japan. As a result of a policy directive adopted by the FEC, however, MacArthur could exercise these powers only after consultingwith representatives of the members of the FEC in Japan. See Boister and Cryer, 2008, p.
26, see above note 11; Horwitz, 1950, p. 482, see above note 17.
Totani, 2008, p. 30, see above note 10.
Two members of the Tribunal, the Australian President and the Filipino judge, submitted
separate opinions that registered disagreement with aspects of the majority judgment. The
French, Dutch and Indian members filed opinions that dissented from the majority judgment more substantially – in the case of Judge Pal, comprehensively. For a succinct summary of the separate opinions, see Piccigallo, 1979, pp. 28-31, see above note 5.
Nuremberg Charter, 8 August 1945, Article 14, see above note 28.

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designate a single Chief of Counsel,53 whom other participating countries
could appoint an “Associate Counsel to assist”. 54 This, Solis Horwitz
wrote, was notable: “For the first time eleven nations had agreed in a matter other than actual military operations to subordinate their sovereignty
and to permit a national of one of them to have final direction and control”. 55 As already noted, an American, Joseph Berry Keenan, was appointed Chief of Counsel.
In myriad ways that transcend Keenan’s formal position, the imprintof American policy on key prosecutorial decisions shaped enduring assessments of the IMTFE. In particular, the Tokyo Tribunal’s legacy has
long been clouded by American insistence that Emperor Hirohito not be
indicted, as well as the United States’ role in suppressing evidence of human experimentation involving biological warfare by the Imperial Japanese Army’s Manchuria-based Unit 731.56
5.4. Reconsidering Tokyo’s Legal Legacy
As we have seen, the convergence of myriad factors served to radicallydiminish the Tokyo Tribunal’s presence, and certainly its stature, in scholarly narratives about the origins of international criminal law. Remarkably,
it was long common even among leading experts in the field of international criminal law to describe the International Criminal Tribunal for theformer Yugoslavia (‘ICTY’), which was created by the UN Security
Council in May 1993,57 as the first international criminal tribunal since
Nuremberg.58
Not surprisingly, then, scholars and advocates have often seemedunaware of the Tokyo Tribunal’s substantive contributions to the field ofinternational criminal law.59 Apparent ignorance of the Tribunal’s treatment of crimes of sexual violence is a notable case in point.
53
54
55
56
57

58
59

Tokyo Charter, 26 April 1946, Article 8(a), see above note 31.
Ibid., Article 8(b).
Horwitz, 1950, pp. 486-87, see above note 17.
See Futamura, 2008, p. 63, see above note 3.
UN Security Council, resolution 827, International Criminal Tribunal for the former Yugoslavia (ICTY), UN Doc. S/RES/827 (1993), 25 May 1993 (https://www.legal-tools.org/
doc/dc079b/).
See Kaufman, 2010, pp. 753-54, see above note 4.
Another factor may have contributed to this phenomenon: until the 1990s, literature exploring the Tokyo precedent focused overwhelmingly on crimes against peace, largely ob-

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5. The Tokyo Tribunal’s Legal Origins and Contributions toInternational Jurisprudence as Illustrated by Its Treatment of Sexual ViolenceWith justification, scholars and advocates have often held that, until
the 1990s, sexual violence was widely viewed as an inevitable by-productof war rather than a grave offense, and for that reason was largely invisible in post-war prosecutions.60 When the UN Security Council created the
ICTY, a global movement sought to ensure that rape would at long last beprosecuted as a war crime, as though this had never happened before.61
While advocates’ general concerns were amply warranted, many
seemed unaware that crimes of sexual violence had been successfullyprosecuted at Tokyo as war crimes. As previously noted, the prosecution
offered “voluminous” evidence of Japanese atrocities, which included therapes of thousands of women during the occupation of Nanjing in 1937–
38. The prosecution presented evidence of sexual violence principally as
alleged violations of the laws of war as defined in the Regulations annexed to the Hague Convention No. IV Respecting the Laws and Customsof War on Land.62
Notably in light of concerns that post-war prosecutions did not recognize the serious nature of sexual violence, testimony about rapes committed in Nanjing reflected an acute awareness of the gravity of thesecrimes. For example, a witness who described summary executions inNanjing responded this way when asked, “What was the conduct of theJapanese soldiers toward the women” there?: “That was one of the roughest and saddest parts of the whole picture”.63 And when a defence lawyer
tried to discredit a witness who testified about mass rapes in Nanjing bysuggesting that Chinese soldiers also committed rape, the President of the

60

61

62

63

scuring the Tribunal’s treatment of other atrocity crimes. See Totani, 2011, p. 147, seeabove note 39. This is not surprising, as charges relating to crimes against peace dominated the trial and judgment. See ibid.; Boister and Cryer, 2008, p. 175, see above note 11.
See, for example, Rhonda Copelon, “Gender Crimes as War Crimes: Integrating Crimes
against Women into International Criminal Law”, in McGill Law Journal, 2000, vol. 46, p.
220.
See Felice D. Gaer, “Rape as a Form of Torture: The Experience of the Committee Against
Torture”, in CUNY Law Review, 2012, vol. 15, no. 2, p. 295. Some, to be sure, recognized
the Tokyo precedent. See, for example, Theodor Meron, “Editorial Comment: Rape as a
Crime under International Humanitarian Law”, in American Journal of International Law,
1993, vol. 87, no. 3, p. 426.
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 19 October 1907 (https://www.
legal-tools.org/doc/fa0161/).
Tokyo Trial Records, vol. 7, p. 2633, see above note 1 (testimony of Dr. Miner SearleBates).

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Tokyo Tribunal, Australian Justice William Webb, sternly reminded thelawyer “that rape and the murder of women could never be just reprisals”.64
The judgment did not provide a detailed assessment of evidence ofsexual violence and other Japanese atrocities, which the majority deemed“not practicable”.65 Nevertheless, its brief review credited evidence concerning rapes in Nanjing and other locations.66 Of atrocities in Nanjing,
the judgment found:
There were many cases of rape. Death was a frequent penalty for the slightest resistance on the part of a victim or themembers of her family who sought to protect her. Even girlsof tender years and old women were raped in large numbers
throughout the city […]. Approximately 20,000 cases of rape
occurred within the city during the first month of the occupation.67

Although the judgment did not make determinations about the specific classification of these offences,68 it left no doubt that they constituted

64
65

66

67
68

Ibid., p. 2595.
International Military Tribunal for the Far East, Judgment, 4 November 1948, in Tokyo
Trial Records, vol. 103, p. 49592, see above note 1 (‘Judgment’).
See, for example, ibid., pp. 49613 (Hopeh Province), 49617 (Changsha and Kweilin),
49632 (Blora, Dutch East Indies), and 49638, 49640 (Manila).
Ibid., pp. 49605-06.
The prosecution brought several different war crimes charges in relation to crimes of sexual violence. See example, Indictment, Annex D, Section One (“female prisoners wereraped by members of the Japanese forces” in violation of Article 4 of the Hague Regulations prohibiting “inhumane treatment”); ibid., Section Twelve (inhabitants of occupied
territories were raped in violation of Article 46 of the Hague Regulations requiring respectfor “[f]amily honour and rights”).

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war crimes.69 Certain defendants were, moreover, convicted for failing totake appropriate measures to stop these and other atrocities.70
This is not to suggest Tokyo modeled appropriate treatment ofcrimes of sexual violence. Far from it. In particular, the prosecution andjudgment have been faulted, and quite rightly so, for their almost complete neglect of the sexual enslavement of so-called “comfort women”.71
Shamefully, this failure was not for lack of evidence, which was readily
available. Indeed, evidence of enforced prostitution was introduced during
the Tokyo Trial, and the judgment explicitly recognized that, during theJapanese occupation of Kweilin [Guilin], Japanese forces “recruited
women labor on the pretext of establishing factories” yet in reality “forced
the women thus recruited into prostitution with Japanese troops”.72 Evenso, as Ustinia Dolgopol writes, “these crimes were never made a central
focus of the prosecutors’ case nor of the Judgment”.73
Yet this should not obscure the unique contributions of the Tokyo
Tribunal. The Tokyo prosecutor’s decision to include acts of sexual vio69

70

71

72
73

See, for example, Judgment, Tokyo Trial Records, vol. 103, p. 49592, see above note 1,
stating:
The evidence relating to atrocities and other Conventional War Crimes presented before the Tribunal establishes that from the opening of the war in China until the surrender of Japan in August 1945 torture, murder, rape and other cruelties of the mostinhumane and barbarous character were freely practiced by the Japanese Army andNavy.
(Emphasis added.) See also ibid., p. 49791 (finding defendant guilty of war crimes in relation to “violations of women” and other atrocities in Nanjing).
See ibid., pp. 49815-16 (General Iwane Matsui, Commander-in-Chief of the Central China
Area Army, knew of the atrocities, including rape, committed in Nanjing, and “had thepower, as he had the duty, to control his troops and to protect the unfortunate citizens ofNanking. He must be held criminally responsible for his failure to discharge this duty”);
ibid., p. 49791 (Kōki Hirota, Japan’s Foreign Minister, “was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities,
failing any other action open to him to bring about the same result. He was content to rely
on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence”). While my focus here is on the fact that suspects were convicted of war crimes including rape, it should be noted that the standard of superior responsibility imposed by the IMTFE has been controversial.
See, for example, Nicola Henry, “Silence as Collective Memory: Sexual Violence and theTokyo Tribunal”, in Tanaka, McCormack and Simpson, 2011, p. 263, above note 13.
Judgment, Tokyo Trial Records, vol. 103, p. 49617, see above note 1.
Dolgopol, 2011, p. 244, see above note 18.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

lence in war crimes charges and the judgment’s recognition of rape as awar crime marked a salutary departure from Nuremberg. Despite extensive documentation of Nazi crimes of sexual violence and the introductionof evidence of such crimes during the IMT trial, they were not prosecuted
as such in Nuremberg.74 Viewed in this light, the IMTFE’s prosecution ofsexual violence as a war crime is historic.
Thus it is striking that, even today, analyses of international jurisprudence on crimes of sexual violence often cite the Tokyo precedent, if atall, for the proposition that its Charter did not explicitly recognize rape asa war crime or crime against humanity.75
Fortunately, the first Prosecutor of the ICTY and International
Criminal Tribunal for Rwanda, Richard J. Goldstone, never doubted thatrape constitutes a war crime provided other elements of war crimes arepresent. Nevertheless, he and his fledgling staff wanted to marshal thestrongest support available for the charges they would bring. During theearly years of the ad hoc Tribunals’ operations, I directed a project, the
War Crimes Research Office of the Washington College of Law, that provided legal analyses to the Prosecutor. Among the earliest requests we received was for an analysis of post-war precedents for prosecuting crimesof sexual violence. One of our most extensive memoranda for the Prosecutor explored the Tokyo Tribunal’s historic judgment, then the most important precedent in this area.76

74

75

76

See Kelly D. Askin, “Women and International Humanitarian Law”, in Kelly D. Askin and
Dorean M. Koenig (eds.), Women and International Human Rights Law, Transnational
Publishers, Ardsley, 1999, vol. 1, p. 52; Patricia Viseur Sellers, “The Prosecution of Sexual
Violence in Conflict: The Importance of Human Rights as a Means of Interpretation”,
2008, p. 7 (available on the UN’s web site); Kelly D. Askin, “Prosecuting Wartime Rapeand Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles”, in Berkeley Journal of International Law, 2003, vol. 21, p. 301. Nevertheless, gender-related crimes for which evidence was introduced in Nuremberg “can beconsidered subsumed within the IMT Judgment”, ibid.
See, for example, Grace Harbour, “International Concern Regarding Conflict-related Sexual Violence in the Lead-up to the ICTY’s Establishment”, in Serge Brammertz andMichelle Jarvis (eds.), Prosecuting Conflict-Related Sexual Violence at the ICTY, Oxford
University Press, 2016, p. 28.
In contrast to many scholars’ failure to recognize Tokyo’s treatment of sexual violence, theperson who served as Goldstone’s specialist on gender-based crimes, Patricia Viseur
Sellers, has forthrightly recognized the Tokyo Tribunal’s singular legacy. Noting criticism
of the IMT for its failure to address sexual violence, Sellers continues: “The Tokyo Tribunal prosecutors […] resolutely indicted the rape of prisoners and female nurses”, while its

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5.5. Conclusion
For a variety of reasons, including undeniably serious flaws, the Tokyo
Tribunal was long neglected or downplayed in legal scholarship, as inother disciplines. As a consequence, its foundational role in and contributions to international criminal law were long obscured. Scholarship in thisfield was correspondingly diminished, as many scholars and practitioners
overlooked opportunities to build upon salutary aspects of the IMTFE’s
work.
Fortunately, recent years have brought welcome change, as a wealthof impressive scholarship has revisited virtually every aspect of the Tribunal’s legacy. Other authors in this volume are among the leading contributors to this rich body of work. Through their work, Tokyo’s legacy is
being reconstructed in all its rich complexity. And this is invaluable. For atribunal’s record – its failures as well as its successes – can offer vital lessons and resources for contemporary efforts to sanction crimes against thebasic code of humanity.

judges, “upon denoting the plethora of extreme sexual misconduct, forthrightly issued
convictions”: Sellers, 2008, p. 7, see above note 74.

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6______
Glimpses of Women at the Tokyo Tribunal
Diane Marie Amann*
6.1. Introduction
The introduction to a new study of the International Military Tribunal for
the Far East (‘IMTFE’) reports that “there were several female attorneys
on duty at the IMTFE”, and adds that “Tokyo was a pioneer in this regard
and thus more modern than, for example, the tribunal at Nuremberg”.1
The passage merits scrutiny. Although the one Dutch and six American
women named were lawyers, only three of them spoke in court, and thenature of the others’ work is unclear. Moreover, depending on how one
views the two post-World War II projects, the proportion of women lawyers at Tokyo may not have been greater than at Nuremberg. These disparities point to the innate contingencies of historical research. Shifts insocial context – in the understanding of what facts are pertinent, andwhose experiences matter – affect both the availability and the assessmentof archival and other sources. Research on women’s roles, including theimportant work still under way by authors of the quoted study, presents aparticularly daunting challenge, not least because the IMTFE is itself only
now emerging from the law’s shadows. It is as if the ‘Tokyo women’ werea tiny matryoshka hidden inside a slightly bigger doll called ‘Tokyo Tri-*

1

Diane Marie Amann is Emily & Ernest Woodruff Chair in International Law, and Faculty
Co-Director of the Dean Rusk International Law Center, University of Georgia School ofLaw, Athens, Georgia, USA. Amann’s many publications include several essays on women as creators and shapers of law, peace and security; especially, of international criminal
justice. She is writing a book on the roles that a multinational cohort of women played – aslawyers and legal aides, journalists and artists, interpreters and translators – during thepost-World War II trials at Nuremberg. She is grateful to her colleagues, and the editors of
this volume, for their assistance with this chapter.
Kerstin von Lingen, “Introduction”, in Kerstin von Lingen (ed.), Transcultural Justice at
the Tokyo Tribunal: The Allied Struggle for Justice, 1946-48, Brill, Leiden and Boston,
2018, p. 14; see Lisette Schouten, “In the Footsteps of Grotius: The Netherlands and Its
Representation at the International Military Tribunal for the Far East, 1945–1948”, in ibid.,
p. 247 and n. 24 (repeating list); below text accompanying notes 44–56 (quoting passage
fully and examining it further).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

bunal’, itself nested within others named ‘Nuremberg’, ‘international
criminal justice’, ‘law’ and so on.
As this chapter demonstrates, the Tokyo litigation teams included
women who had earned law degrees at Cambridge, Yale, Gonzaga andelsewhere, and had practiced in federal courts, private law firms, or government ministries. Yet, few were permitted to address the Tribunal, andseveral worked under job titles like ‘analyst’ rather than ‘attorney’. Some
Tokyo women had not finished law school, yet performed attorneys’ work,often aided by other women professionals, such as secretaries, court reporters, and interpreters. Women at the Tokyo Trial included unattachedtwenty-somethings and married forty-somethings. All profiled in thischapter were American or European nationals, unacquainted with Japan.
All of them are even less well known than the Tribunal at which they
worked.
For much of the 70 years since it convicted 25 Japanese leaders of
war crimes, crimes against humanity, and crimes against peace, the Tokyo
Tribunal has scarcely been visible in the global legal imagination. For
decades, it was difficult even to set eyes on the Tribunal’s judgment, andwhat few academic critiques there were tended to dismiss it as an exercise
in victors’ justice. This is changing, but Tokyo’s new visibility retains ablind spot: as did the old ones, most of the new histories also highlightmen. Women participants remain obscure, sometimes seen but seldom
heard or discussed. This chapter constitutes an effort to expose what has
been hidden; that is, to figure women properly within the Tokyo Tribunal
narratives.
The chapter first probes the shadows that surrounded Tokyo relative
to its Nuremberg counterpart, and then surveys renewed interest in theproceedings in Japan’s capital. It notes women’s muted roles in academic
discourse and, to varying degrees, in three filmed accounts, each titledTokyo Trial.2 The chapter next gives voice to the women who worked at
Tokyo; in particular, women who served on legal teams as lawyers andanalysts, stenographers and translators, as well as secretaries and administrators. Profiled are the seven women identified in the study quoted
2

Pieter Verhoeff and Rob W. King (dirs.), Tōkyō saiban (Tokyo Trial), NHK, Japan, 2016;
GAO Qunshu (dir.), Dongjing shen pan (The Tokyo Trial), Beijing Xianming Yinghua
Culture & Media, Jiujiang Changjiang Film TV Production, and Shanghai Film Group,
China, 2006; Masaki Kobayashi (dir.), Tōkyō saiban (International Military Tribunal for
the Far East), Kodansha, Japan, 1983.

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6. Glimpses of Women at the Tokyo Tribunal

above – Virginia Bowman, Lucille Brunner, Eleanor Jackson, Helen
Grigware Lambert, Grace Kanode Llewellyn, Bettie Renner, and Coomee
Strooker-Dantra, along with Elaine B. Fischel, the author of a noteworthy
memoir.3 Finally, the chapter draws comparisons with findings from my
own research on the ‘Nuremberg women’. The chapter is tentative; aswith my 2010 essay, “Portraits of Women at Nuremberg”,4 the discussion
offers contingent glimpses of the Tokyo women in the hope of encouraging further research.
6.2. A Tribunal in the Shadows
Allied leaders affirmed plans for post-war international criminal trials
during a 1945 conference at Potsdam, Germany. Referring to Europe, theysaid: “War criminals and those who have participated in planning or carrying out Nazi enterprises involving or resulting in atrocities or war crimes
shall be arrested and brought to judgment”.5 As for Japan, they insisted
that “stern justice shall be meted out to all war criminals, including those
who have visited cruelties upon our prisoners”.6 These declarations were
implemented along seemingly parallel tracks; a closer look, however, reveals divergences. Efforts along the Japan track moved more slowly, forexample. The war in Europe had ended two months before the July gathering at Potsdam, after all, and the Charter of the International Military
Tribunal (‘IMT’) at Nuremberg would issue soon after – on 8 August, in
London, within hours of the US atomic-bombing of Nagasaki and of Rus3

4

5

6

See Elaine B. Fischel, Defending the Enemy: Justice for the WWII Japanese War Criminals, Bascom Hill Books, Minneapolis, 2009, discussed below in text accompanying notes
57–73. Women also were witnesses: see Arnold C Brackman, The Other Nuremberg: The
Untold Story of the Tokyo War Crimes Trials, William Morrow & Co., New York, 1987,
pp. 20–21 (recalling testimony of Esther Garcia Moras); Jeanne Guillemin, Hidden Atrocities: Japanese Germ Warfare and American Obstruction of Justice at the Tokyo Trial, Columbia University Press, New York, 2017, p. 198 (discussing interrogation of Phyllis Bannan).
Diane Marie Amann, “Portraits of Women at Nuremberg”, in Elizabeth Andersen andDavid M. Crane (eds.), Proceedings of the Third International Humanitarian Law Dialogs,
American Society of International Law, Washington, DC, 2010, pp. 31–54.
The Berlin (Potsdam) Conference, July 17–August 2, 1945, (a) Protocol of the Proceedings,
August 1, 1945 (‘Potsdam Conference’), section II(A)(5) (https://www.legal-tools.org/doc/
f966df/).
Ibid., Annex II, para. (b)(10). This portion of the Potsdam protocol is reprinted in Neil
Boister and Robert Cryer (eds.), Documents on the Tokyo International Military Tribunal:
Charter, Indictment and Judgments, Oxford University Press, Oxford, 2008, pp. 1–2 (‘Tokyo Documents’).

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sia’s entry into the war against Japan,7 and nearly a month before the signing of the Japanese surrender.8 Another nine months would elapse before
the man named the Supreme Allied Commander in Tokyo, US General
Douglas MacArthur, proclaimed the final Charter of the IMTFE;9 by then,the year-long Nuremberg Trial of the Major War Criminals was almost
halfway through.
Efforts in Japan also seemed to run on a shorter track. In legal andpopular discourse, ‘Nuremberg’ typically refers not only to the trial before
the IMT, which concluded in October 1946, but also to 12 subsequent trials that the United States conducted in the same courthouse, with the cooperation of other Allies. These latter trials took place before US judges
sitting on three-member panels called the Nuremberg Military Tribunals;
they lasted through to May 1949. ‘Tokyo’, in contrast, conjures the single
international trial of Japanese Class A war criminals, which began later(April 1946) and ended earlier (November 1948) than the 13 trials at Nuremberg.10
In at least one respect, the Japan track operated on a broader gauge.
While only four countries – the United Kingdom, France, the Soviet Union and the United States – could appoint judges and chief prosecutors at

7

8

9

10

New Yorkers read “Soviet Declares War On Japan; Attacks Manchuria, Tokyo Says; Atom
Bomb Loosed On Nagasaki”; one story beneath that banner was Charles E. Egan, “4 Powers Call Aggression Crime in Covering War Trials”, New York Times, 9 August 1945, p. 1
(available on its “TimesMachine”).
“Japanese Instrument of Surrender”, in Tokyo Documents, 2008, pp. 3–4, see above note 6(https://www.legal-tools.org/doc/4059de/). The advanced planning for Europe is evident in
Potsdam Conference, section VI, see above note 5, which refers to negotiations in London
and calls for a list of Nazi defendants by 1 September 1945 – the day before the signing ofJapan’s unconditional surrender.
Charter of the International Military Tribunal for the Far East at Tokyo, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 26 April 1946, annexedto this volume (‘Tokyo Charter’). This version, also reprinted in Tokyo Documents, 2008,
pp. 7–11, see above note 6, replaced MacArthur’s 19 January 1946 proclamation reprinted
ibid., pp. 5-6.
See Michael Bazyler, Holocaust, Genocide, and the Law: A Quest for Justice in a PostHolocaust World, Oxford University Press, New York, 2016, pp. 69–103 (providing datesof the 13 trials at Nuremberg); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit ofJustice in the Wake of World War II, Harvard University Asia Center, Cambridge, Massachusetts, and London, 2008, pp. 7–8 (setting out Tokyo Trial dates). Many other trials occurred in Europe and in Asia, in military tribunals and in national courts; at times, these
are conflated with the Nuremberg or Tokyo projects.

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Nuremberg,11 the Tokyo Tribunal added seven to that list.12 A new judicial
seat from Europe went to the Netherlands, which still claimed Indonesia
as its colony; one from the Americas, to Canada; and five from Asia, toAustralia, China, India, New Zealand, and the Philippines. Nevertheless,unlike at Nuremberg, at Tokyo the top military commander had the final
say over the men who would judge. And though other countries sent associate prosecutors to Tokyo, only one man served as Chief of Counsel; appointed by President Harry S. Truman, this top prosecutor was Joseph B.
Keenan, a US Department of Justice official and former military lawyer.13
During and after Tokyo, these departures from the Nuremberg model were
frequently deemed unfortunate. First, MacArthur’s interventions, on matters such as the non-prosecution of Japan’s Emperor, seemed motivatedmore by political expediency than a quest for accountability. Second,
Keenan’s absences and courtroom behaviour drew criticism. Finally, theheterogeneity of the Tokyo bench fostered disagreement. Two separate
opinions and three dissents accompanied the majority judgment, and unlike at Nuremberg, the dissenters challenged foundational principles of the
Tribunal.14 Such factors helped to push Tokyo, far more than Nuremberg,
into the law’s shadows.
Divergences in the dissemination of tribunal information underline
the point. “The Nuremberg trials received much publicity and relatively
widespread newspaper coverage throughout the proceedings”, wrote Solis
Horwitz, who had served as a deputy chief prosecutor at Tokyo; conversely, he added: “Scant attention was paid by the American press to the To11

12

13

14

See Agreement for the Prosecution and Punishment of the Major War Criminals of theEuropean Axis Powers and Charter of the International Military Tribunal, 8 August 1945,
Articles 2, 14 (https://www.legal-tools.org/doc/844f64/, https://www.legal-tools.org/doc/
64ffdd/).
On the structure at Tokyo, see Tokyo Charter, Articles 2, 3, 8, see above note 9. On the“scepticism” with which the Netherlands greeted its inclusion, see Schouten, 2018, pp.
244–47, see above note 1.
Executive Order No. 9660, 10 Fed. Reg. 14591, 30 November 1945. For a roster of associate prosecutors, see Telephone Directory, International Prosecution Section, War Ministry
Building, 19 June 1946, C.W.J. Phelps Collection (‘Phelps Collection’), Box 2, available
at University of Virginia School of Law, International Military Tribunal for the Far East
Digital Collection (‘UVA IMTFE’) (http://imtfe.law.virginia.edu/).
For example, Elizabeth S. Kopelman [Borgwardt], “Ideology and International Law: The
Dissent of the Indian Justice at the Tokyo War Crimes Trial”, in New York University
Journal of International Law and Politics, 1991, vol. 23, no. 2, pp. 373–444. See also below text accompanying notes 20–28.

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kyo Trial”.15 Writing in a journal of the Carnegie Endowment for International Peace, Horwitz confined his observations to sources in English, as
does this chapter with regard to its survey of commentary.16
Horwitz’s observation about the paucity of attention to Tokyo extended as well to official publications. During 1946, the year of the IMT
judgment, the US government issued 11 red tomes containing documentson the prosecution of Nazis for conspiracy to wage an aggressive war.17
This ‘Red Series’ was soon joined by a 42-volume ‘Blue Series’, which
covered all aspects of that IMT, plus a 15-volume ‘Green Series’, whichchronicled the 12 subsequent proceedings before the US-led Nuremberg
Military Tribunals.18 By 1949, the Nuremberg project had published nearly 60,000 pages of official documentation, in books deposited in libraries
across the United States. A year later, Horwitz observed: “No comparable
action has as yet been taken with respect to the Tokyo judgment and records”.19
Nor would it be. In 1953, a Calcutta press issued in book form the
1,200-page dissent in which India’s Justice Radhabinod Pal had urged thatall defendants be acquitted.20 The full judgment did not appear until 1977,
in two volumes published in Amsterdam and edited by two Dutch law
professors – one of them Justice B.V.A. Röling, author of another Tokyo

15

16

17

18

19
20

Solis Horwitz, “The Tokyo Trial”, in International Conciliation, 1950, vol. 28, no. 465, p.
475 (omitting the stray comma after “trials” in the original).
This limitation is, in part, on account of space constraints. On representations in Japanese,see, for example, Totani, 2008, above note 10, and in this volume, Beatrice Trefalt, “Remembering the Tokyo Trials, Then and Now: The Japanese Domestic Context of the International Military Tribunal for the Far East”, chap. 15 below.
Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression, vols. I–VIII, plus books subtitled Supplement A, Supplement B,
and Opinion and Judgment, US Government Printing Office, Washington, DC, 1946.
Trial of the Major War Criminals before the International Military Tribunal, Nuremberg,
14 November 1945–1 October 1946, Nuremberg, 1947; Trials of War Criminals before theNuernberg Military Tribunals under Control Council Law No. 10, Nuernberg [Nuremberg],
October 1946–April 1949 (‘Green Series’). All volumes in the three series may be accessed, in searchable PDF format, on the web site of the Library of Congress, under “Military Legal Resources”.
Horwitz, 1950, p. 476, see above note 15.
Radhabinod Pal, International Military Tribunal for the Far East: Dissentient Judgment ofJustice R.B. Pal, Sanyal, Calcutta, 1953.

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dissent.21 The Tokyo transcripts were largely unavailable until 1981, whena New York press issued 22 volumes edited by two historians.22 Great improvement came with the recent placement of typescript transcripts andother Tokyo Trial documents, in searchable format, on the ICC Legal
Tools Database.23
Likewise, unofficial discourse was sparse. Research has turned up
at least 40 book-length, English-language memoirs by Nuremberg men,far more than those by Tokyo participants. No star-studded Hollywood
blockbuster like Judgment at Nuremberg arose out of the proceedings inJapan.24 The serious commentaries with the firmest grasp on the global
imagination were not favourable ones like Horwitz’s 1950 essay.25 Jurists
instead preferred critical accounts – some produced by the prolific
Röling26 – which disparaged the Tokyo Trial as an example of “victors’
justice” 27 that was “fraught with procedural irregularities”, “politicallymotivated”, and “dubious, if not erroneous”.28 Even amid the post-Cold
21

22

23
24
25

26

27

28

B.V.A Röling and C.F. Rüter (eds.), The Tokyo Judgment: The International Military Tribunal for the Far East (IMFTE), vols. I and II, Amsterdam University Press, Amsterdam,
1977. On the publishing history, see, for example, Tokyo Documents, 2008, pp. lxxxiii–
lxxxiv, see above note 6.
R. John Pritchard and Sonia Magbanua Zaide (eds.), The Tokyo War Crimes Trial: The
Complete Transcripts of the Proceedings of the International Military Tribunal for the Far
East in Twenty-Two Volumes, Garland, New York, 1981. A search in the WorldCat database (https://www.worldcat.org/) indicated that even today, only a hundred or so libraries
worldwide possess these volumes.
See ICC Legal Tools Database (https://www.legal-tools.org/).
Stanley Kramer (dir.), Judgment at Nuremberg, Roxlom Films, USA, 1961.
A literature review, nonetheless, indicates a greater willingness to rely on Horwitz, 1950,
see above note 15, than on a contemporaneous book by the Chief of Counsel and a Juridical Consultant at Tokyo, Joseph Berry Keenan and Brendan Francis Brown, Crimes
Against International Law, Public Affairs Press, Washington, DC, 1950.
See Jeanie M. Welch, The Tokyo Trial: A Bibliographic Guide to English-Language
Sources, Greenwood Press, Westport, Connecticut, 2002, pp. 84–86 (providing Röling’s
bibliography).
Though the term calls to mind a later critique – Richard H. Minear, Victors’ Justice: Tokyo
War Crimes Trial, Princeton University Press, Princeton, 1971 – ‘victors’ justice’ won currency even before the trial’s conclusion in 1948. Fischel, 2009, pp. 300–03, 317, see above
note 3.
M. Cherif Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to
Establish a Permanent International Criminal Court”, in Harvard Human Rights Journal,
1997, vol. 10, pp. 33–35 and nn. 96, 110 (citing, inter alia, Minear, 1971, see above note
27, and Bernard V.A. Röling, “The Nuremberg and the Tokyo Trials in Retrospect”, in M.
Cherif Bassiouni and Ved P. Nanda (eds.), A Treatise on International Criminal Law, vol.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

War revival of international criminal justice, therefore, the IMTFE remained in the law’s shadows, its precedents seldom surfacing in the
judgments of successor tribunals.
6.3. Amid New Visibility, Women’s Muted Roles
Recently, the English-language landscape regarding Tokyo has changed.
The year 2008 saw the appearance of a one-volume compilation of the
IMTFE Charter, indictment and judgment; its editors, Neil Boister andRobert Cryer, also published a scholarly reappraisal that year. 29 Thesebooks, coupled with Yuma Totani’s pathbreaking 2008 monograph,30 confirmed the renewal of interest in post-war proceedings in Japan. Legal andhistorical writings ensued.31 Renewed interest extended to popular culture,
as evidenced by filmed accounts like a 2016 Emmy-nominated miniseries, Tokyo Trial (Tōkyō saiban), a joint effort of Japan, Canada and theNetherlands, still streaming on Netflix.32
Despite this visibility, a blind spot marks many of the newer histories: discussions of women’s roles, though more frequent, remain relatively muted. The newer academic literature has broken the “silence” in the“collective memory”, to quote Nicola Henry; however, much of thisbreakthrough has centred on issues related to the sexual violence and enslavement to which women in Asia were subjected by Japanese troops.33

29

30
31

32

33

1, Charles C. Thomas, Springfield, Illinois, 1973, pp. 600–01, 605–07); see Antonio
Cassese, International Criminal Law, second edition, Oxford University Press, Oxford,
2008, p. 322 (characterizing both Tokyo and Nuremberg as examples of “victors’ justice”).
See Tokyo Documents, 2008, see above note 6; Neil Boister and Robert Cryer, The Tokyo
International Military Tribunal: A Reappraisal, Oxford University Press, New York, 2008.
Totani, 2008, above note 10.
Works not cited elsewhere in this chapter include Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg legacy, Routledge,
London and New York, 2008; Sandra Wilson, Robert Cribb, Beatrice Trefalt and Dean
Aszkielowicz, Japanese War Criminals: The Politics of Justice after the Second World
War, Columbia University Press, New York, 2017; Kirsten Sellars, “Imperfect Justice at
Nuremberg and Tokyo”, in European Journal of International Law, 2001, vol. 21, no. 4,
pp. 1085–1102.
Verhoeff and King (dirs.), 2016, see above note 2; Etan Vlessing, “NHK Pacts With Canadian, Dutch Producers on World War II Drama (Exclusive)”, Hollywood Reporter, 20 May
2014 (available on its web site); “2017 International Emmy Awards Nominees”, available
on the web site of the International Emmy Awards.
See Nicola Henry, “Silence as Collective Memory: Sexual Violence and the Tokyo Trial”,
in Yuki Tanaka, Timothy L.H. McCormack and Gerry Simpson (eds.), Beyond Victor’sJustice? The Tokyo War Crimes Trial Revisited, Martinus Nijhoff, Leiden and Boston,

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Although profoundly important, these are by no means the only aspects of
the Tokyo proceedings pertinent to women.
Also important is the extent to which women participated in that
post-war trial. Yet, most biographical accounts put men in the limelight,
leaving women on the margins. That is certainly the case with the 2016
mini-series, which revolves around Justice Röling. The series opens withthis European jurist, played with pensive understatement in the mould of
1940s film stars like Gary Cooper, writing a letter to the distant wife
whom he will not see again for more than two years. Soon, a German
concert pianist attracts the attention of violinist Röling, but they breakwhen she manoeuvres to have him meet the wife and daughter of a Tokyo
defendant. Occasionally, other women are seen, posing in a bikini or serving drinks in a kimono here, or, clad in a dark suit, typing a document
there. The only professional who speaks is identified only as ‘Lady’.34
Though prim in dress and in demeanour, Lady, an interpreter, exercises
considerable agency: she is the Russian judge’s only means of communicating with his peers, and often chooses to render his harsh remarks intactful terms.
The hero-narrator of a 2006 feature-length Chinese film, The Tokyo
Trial (Dong Jing shen pan), is Justice MEI Ju’ao [Ru’ao], China’s representative on the bench.35 As with the 2016 mini-series, this version intersperses courtroom proceedings and judicial deliberations with depictions

34

35

2011, pp. 263–82. Related chapters in this volume are: Ustinia Dolgopol, “Knowledge andResponsibility: The Ongoing Consequences of Failing to Give Sufficient Attention to the
Crimes against the Comfort Women in the Tokyo Trial”, pp. 243-61; and Helen Durham
and Narrelle Morris, “Women’s Bodies and International Criminal Law; From Tokyo toRabaul”, pp. 283–90. See also Christine M. Chinkin, “Women’s International Tribunal on
Japanese Military Sexual Slavery”, in American Journal of International Law, 2001, vol.
95, no. 2, pp. 335–41.
Verhoeff and King (dirs.), 2016, Episode 1, see above note 2 (depicting a judges’ conference in which participants are greeted as “Gentlemen – and Lady”). Credits identify theaide only as “Russian Translator”. IMDb, “Tokyo Trial (2016) Full Cast & Crew” (available on its web site).
GAO (dir.), 2006, see above note 2. MEI’s diary, in Chinese, may have served as source
material for this film. For an English-language essay by him which conveys his concern
about harms to Chinese people, see MEI Ru’ao [Ju’ao], “The Nanking Massacre and theTokyo Trial”, in CHENG Zhaoqi, SONG Zhiyong, ZHANG Sheng, ZHAI Yi’an, and HE
Qinhua (eds.), The Tokyo Trial: Recollections and Perspectives from China, Cambridge
University Press, Cambridge, 2016, pp. 242–48. Here and elsewhere in this chapter, thesurnames of Chinese nationals appear first, as is customary, unless stated otherwise in asource; Japanese names follow the Western convention, as explained in the front-matters.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryof Tokyo life. Its perspective is quite different, however; trial scenes dwell
on Japan’s crimes in China, while MEI and other characters struggle towork out historical and contemporary interrelations between Japanese andChinese people. Women tend bars and wait tables; one was a “sex tool”
for the Japanese Army. The camera often settles on two women in the
courtroom gallery, one of whom faints when former Prime Minister Hideki Tōjō testifies that he would resume warfare if acquitted. Next to her is
Yoshiko Wada, a reporter who has befriended a Chinese male colleague.
Shaken by the testimony about the rape of a Chinese girl, Wada confides
in her brother, who protests, “Yoshiko, don’t forget you are Japanese”.36
Later, he shoots her and her colleague, who then strangles him to death.
Women play more central roles in the 1983 Japanese documentary
International Military Tribunal for the Far East (Tōkyō saiban), directedby renowned filmmaker Masaki Kobayashi. 37 Among the women spotlighted is Shizuko Hirota, the wife of another former prime minister on
trial, said to have committed suicide to ‘ease’ the mind of her husband.
“When Hirota heard the news, he simply nodded.” 38 Later, Kobayashi
presents actual trial footage of witness “Vivien Bullwinkel, Australian
Army Nursing Service Captain”.39 In 1942, Bullwinkel, along with othernurses and about 200 women, children and elderly men, had fled from theJapanese troops advancing on Singapore; in 1946, she testified to the
IMTFE that she had endured a shooting, capture and more than three
years of detention in a series of overcrowded, food-scarce, disease-ridden
Japanese prison camps. 40 No defence counsel stood to cross-examine
Bullwinkel, and after the Tribunal’s President, Justice William Webb,
complimented her as a “model witness” who had testified “faultlessly”,
she was excused.41 The video clip reproduced in Kobayashi’s documentary shows Bullwinkel wearing a uniform, tie and broad-brimmed hat.
Hunched over as she speaks into a microphone, she recalls a Japanesemassacre in Indonesia that she alone survived: “They then ordered the
36

37
38
39
40

41

Ibid. Quoted are English-language subtitles, which do not always parse. The extent towhich the subplot is fictional is unclear.
Kobayashi (dir.), 1983, see above note 2.
Ibid.
Ibid.
For this witness’ full testimony, see Transcript of proceedings, 20 December 1946, pp.
13454–76 (‘Bullwinkel testimony’) (https://www.legal-tools.org/doc/ceff3f/).
Ibid., p. 13476.

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6. Glimpses of Women at the Tokyo Tribunal

twenty-three of us to march into the sea. We had gone a few yards into thewater when they commenced machine guns from behind. I saw the girls
falling one after the other, then I was hit”.42 A panoramic shot of the courtroom reveals a number of other suit-clad women, including one at theprosecution table; none of these women is ever identified.
Such glimpses tantalize, but do not reveal the Tokyo women or theroles they played. It is to those questions that this chapter now turns,
providing some answers about women who worked on legal teams at theTokyo Tribunal.43
6.4. Figuring Women into Tokyo Trial Narratives
The turn toward women’s roles begins with consideration of the full 2018
passage from which this chapter first quoted:
A special case in point for Tokyo is the employment of female attorneys in the prosecution and as legal aides in the
defence team. Scholarship has not yet comprehensively addressed the gender dimension of Tokyo, as there were several female attorneys on duty at the IMTFE: Virginia Bowman,
Lucille Brunner, Eleanor Jackson, Helen Grigware Lambert,
Grace Kanode Llewellyn, Bettie Renner (all from the USA),and the Dutch attorney Coomee Strooker-Dantra. They all
worked on various phases of the prosecution’s case and presented to the court. It is still open to research what degree theemployment of female colleagues was a side effect of theshortage of personnel at Tokyo, or a purposeful experiment.
The fact remains that Tokyo was a pioneer in this regard andthus more modern than, for example, the tribunal at Nuremberg, where women were in large part employed as stenotypists or secretaries only.44

42

43

44

Kobayashi (dir.), 1983, see above note 2; Bullwinkel testimony, p. 13457, see above note
40 (containing transcription of quoted excerpt). For a detailed account of this massacre, see
Ian W. Shaw, On Radji Beach, Pan Macmillan Australia, Sydney, 2010.
Starting points for research on women not mentioned in this chapter include James Burnham Sedgwick, “The Trial Within: Negotiating Justice at the International Military Tribunal for the Far East, 1946-1948”, unpublished Ph.D. thesis, University of British Columbia,
2012 (available on its web site); UVA IMTFE, see above note 13.
Von Lingen, 2018, p. 14, see above note 1. See also Schouten, 2018, p. 247 and n. 24, seeabove note 1; “Three District Women Help in Preparing for Jap War Trials”, Evening Star,
Washington, DC, 20 March 1946, p. A3 (describing Bowman, Brunner, Llewellyn andNuremberg Academy Series No. 3 (2020) – page 113

The Tokyo Tribunal: Perspectives on Law, History and Memory

The passage identifies what it calls “the gender dimension” as anunder-researched aspect of the Tokyo enterprise. Such research is essential,
but daunting. Compounding the relative obscurity of the Tokyo Trial is thepaucity of documentation on women; in particular, women whose names
changed upon marriage or divorce. Until the gaps in knowledge posed bysuch barriers are filled, other statements in the quoted passage necessarily
will remain contingent.
Whether hiring patterns differed is an open question, for instance. A
prosecution directory indicates that, as they did at Nuremberg, most of thewomen at Tokyo held clerical positions.45 The proportion of women on
prosecution and defence teams in Tokyo were not vastly different fromthat in Nuremberg either. Well before the start of the Tokyo Trial, at least
three women lawyers contributed to the Nuremberg prosecution: for theUnited States, Harriet Zetterberg and Katherine B. Fite, both Yale-trained
State Department attorneys, 46 and for France, Dr. Aline Chalufour, amember of the Paris Bar whose Sorbonne dissertation had concerned status of forces agreements.47 At the 12 Nuremberg Military Tribunal trials
between 1947 and 1949, moreover, many women lawyers played significant roles as researchers, writers and in-court advocates. 48 Increase in

45

46

47

48

Renner as lawyers). This chapter refers to these women by the surnames they used at Tokyo or Nuremberg.
See Telephone Directory, 1946, see above note 13. Meanwhile, Tokyo defence lawyers
complained of inadequate clerical support. “Secretaries’ Short Hours Handicap, Attorneys
Say”, undated, available at Phelps Collection, Box 2, see above note 13.
See Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, Alfred A.
Knopf, New York, 1992, pp. 127, 215, 217 asterisked note (mentioning Fite and Zetterberg); Diane Marie Amann, “Politics and Prosecutions, from Katherine Fite to Fatou Bensouda”, in Elizabeth Andersen and David M. Crane (eds.), Proceedings of the Fifth International Humanitarian Law Dialogs, American Society of International Law, Washington,
DC, 2012, pp. 7–46; John Q. Barrett, “Katherine B. Fite: The Leading Female Lawyer at
London & Nuremberg, 1945”, in Elizabeth Andersen and David M. Crane (eds.), Proceedings of the Third International Humanitarian Law Dialogs, American Society of International Law, Washington, DC, 2010, pp. 9–30; Bob Lind, “Valley City Woman was Nuremberg Trial Lawyer”, InForum, Fargo, North Dakota, 8 January 2018 (available on its
web site).
See Amann, 2012, pp. 18–19, see above note 46 (mentioning Chalufour); Aline Chalufour,
Le Statut Juridique des Troupe Alliés pendant la Guerre 1914–18, Les Presses Modernes,
Paris, 1927.
See, generally, Diane Marie Amann, “Cecelia Goetz, Woman at Nuremberg”, in International Criminal Law Review, 2011, vol. 11, no. 3, pp. 607–20; Amann, 2010, see above
note 4.

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women at both courthouses does seem to correlate with the labour shortages brought about by wartime personnel seeking to resume civilian life;
this time-related dynamic militates in favour of expanding analysis so that
the Tokyo Trial is compared to all the Nuremberg trials.49
That said, there seems to have been little purpose behind who was
employed where: those sent to Nuremberg included a Japanese-speaking
lawyer who applied for Tokyo, as well as a Honolulu court reporter ofChinese and Hawai‘ian ancestry.50 Several others, including Marjorie Nellie Culverwell and Myrtle B. Mills, worked on trials in both cities.51 “Inthose days, you didn’t argue”, said Culverwell, a Briton. “You were justtold you were going and that was that”.52 At least two women performed
tribunal-related work out of Washington, DC offices: Eleanor Bontecou,
who had earned her law degree from New York University in 1917 andserved as Bryn Mawr’s acting dean before World War II; and, following abrief stint at Nuremberg, Fite.53 No Japan-based women seem to have acted as lawyers, however. Women were not admitted to the Japanese bar

49

50

51

52
53

A related question is how, over time, Cold War politics affected proceedings in either
courthouse.
Walter Rockler, Interview 11611, 21 March 1996, Tape 2, USC Shoah Foundation Visual
History Archive; Application for Federal Employment, Piilani Andrietta Ahuna, 22 January 1946, p. 1 (on file with author). For a profile of Ahuna by the interpreter she married at
Nuremberg, see Siegfried Ramler, Nuremberg and Beyond: The Memoirs of Siegfried
Ramler: From 20th Century Europe to Hawai‘i, Paul Berry (ed.), Ahuna Press, Kailua,
Hawai‘i: 2008, pp. 78–114.
Culverwell was an ‘assistant’ in the British Division led by Tokyo Associate Prosecutor
Arthur Comyns-Carr and an ‘administrator’ for Airey Neave, a British prosecutor at Nuremberg. “Lady Murray: Official at the Nuremberg and Tokyo war crimes trials and translator of the Wannsee Protocol, which contained the ‘final solution’”, Times, London, 26
February 2010, p. 83; Telephone Directory, 1946, pp. 2, 4, 7, see above note 13. Mills wasa “court stenographer” at Nuremberg and at Tokyo, where she reportedly “developed aloose rapport” with defendant Tōjō. Bruce Miller and Robin Simonton, Historic Oakwood
Cemetery, Arcadia, Mount Pleasant, South Carolina, 2017, p. 43.
Times, 26 February 2010, see above note 51.
See “Application for Federal Employment”, 22 September 1955, Eleanor Bontecou Papers,
Box 14, Harry S. Truman Library; Letter from B.O. Bryan. Executive Assistant, Department of State, The Legal Adviser, to Director of Personnel, Re: Katherine Fite, 26 May
1947 (on file with author).

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until 1940, and none was permitted to serve as a judge or prosecutor until
after World War II.54
Confirming the extent to which someone was a ‘lawyer’ also poses
difficulty. As detailed later in this section, all seven women named in thequoted passage did come to Tokyo with credentials warranting the title of‘attorney’, but as noted by Lisette Schouten, only Lambert, Llewellyn andStrooker were “listed as assistant prosecution counsel and presented to thecourt”.55 The other women named appear in available Tokyo documents
as ‘stenographer’, ‘secretary’, ‘analyst’ or the like. The same was true at
Nuremberg, where various sources attached such labels to women lawyers
like Fite and Chalufour.56 Adding to the confusion, some of the Nuremberg and Tokyo women performed tasks that today would earn them theclassification of ‘law clerk’ or ‘legal advisor’, yet they did not hold law
degrees.
6.4.1. Elaine B. FischelAmong the latter was Elaine B. Fischel, author of a photo-filled memoir
remarkable for the way it balances vivid recollections of life in Tokyo
with reports on case preparation, the trial process, and judicial decisions.
On the day the Japanese attacked Pearl Harbor, Fischel was a twenty-yearold tennis champion and graduate of the University of California, Los
Angeles.57 She mastered stenotyping in order to work Stateside for the
Army Air Force, and in her spare time learned to fly and took law classes.58 A post-war call from a former boss prompted her to seek employment as a court reporter in Tokyo.59 Fischel arrived in the bomb-flattened
54

55
56

57
58
59

Yoko [Yōko] Hayashi, “Women in the Legal Profession in Japan”, in U.S.-Japan Women’s
Journal, English Supplement No. 2, 1992, p. 17. In the United States in 1940, womencomposed 2.4 per cent of the bar. Amann, 2011, p. 619 n. 68, see above note 48.
Schouten, 2018, p. 247 n. 24, see above note 1.
See “Pass into Potsdam issued to Katherine Fite, July 25, 1946”, Katherine Fite Lincoln
Papers, War Crimes File, Harry S. Truman Presidential Museum & Library (‘Fite Papers’)(available on its web site) (“Secretary”); Taylor, 1992, p. 213, see above note 46 (referring
to Chalufour as “administrator” and “interpreter”). A cursory comparison suggests fewer
women interpreters at Tokyo than at Nuremberg. See, generally, Kayoko Takeda, Interpreting the Tokyo War Crimes Trial: A Sociopolitical Analysis, University of Ottawa Press,
Ottawa, 2010.
Fischel, 2009, p. xii, see above note 3.
Ibid., pp. xii–xiii.
Ibid., p. xiii, 2.

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capital on 3 April 1946, having journeyed with two women who would
remain her friends, Audrey S. Davis and Daphne Spratt.60 Deployed not asa court reporter but as a prosecution ‘legal stenographer’, Fischel wasbored and restless, and happy to be reassigned to the defence side.61 She
came to support that side with fervour, not only on the job but also in her
daily letters to family members who were aghast that she was working on
behalf of the Tokyo defendants.62 Fischel recalled typing, of course, butalso tasks often performed by lawyers, such as analysis of Nuremberg
documents and other legal research, conversations with detained clientsand their families, and summaries of joint defence counsel meetings.63
For most of her two and a half years in Japan, Fischel was the secretary for two civilian defence attorneys. John Brannon of Kansas City represented Japanese naval leaders, whom Fischel admired, while William
Logan of New York represented Kōichi Kido, a close advisor to Emperor
Hirohito whom Fischel “tried hard to like”.64 Despite the demanding nature of the work, she took time to study the ways of her host country. “Thewife bows to the husband”, Fischel learned from “Taking One’s Proper
Station”, a chapter in The Chrysanthemum and the Sword by American

60

61
62
63

64

Ibid., pp. 3–5, 9. Like Fischel, Davis was assigned to the steno pool: ibid., p. 11; see also
ibid., pp. 71, 75. Spratt worked as a court reporter: ibid., p. 11; see also ibid., pp. 106, 112,120. Tokyo documents cite her as “Official Court Reporter, IMTFE”. See Proceedings inchambers, 31 October 1946, (https://www.legal-tools.org/doc/2da262/) and Proceedings inchambers, 3 April 1947 (https://www.legal-tools.org/doc/17e3fa/). Spratt would marry afellow North Carolinian; as Daphne Faison, she was quoted in a Tokyo news article reprinted in Fischel, 2009, p. 118, see above note 3. Also mentioned in Fischel’s memoir is“my stenotypist friend, Frances Way”: ibid., pp. 269–73.
Fischel, 2009, pp. 11-12, see above note 3.
Ibid., pp. 62–65, 97–99, 118–22, 131–37.
Ibid., pp. 18–19, 24–30, 48–49, 77, 99, 141, 162–63, 246. Although Fischel does not mention her, the defence cohort reportedly included at least one woman-attorney, namely AliceRebecca Burke, a 1926 University of Virginia law graduate, college lecturer, and WorldWar II Navy lieutenant commander: Old Dominion University Library, “Alice R. Burke”(available on its web site).
Fischel, 2009, pp. 77, 131–37, 170–71, 194, 220, 240, see above note 3. See also Michelle
Glazer, “Americans on the Defense Team in the Tokyo War Crimes Trials, 1946–1948:
Understanding the Mentality Behind Defending the “Enemy””, in Ezra’s Archives, 2017,vol. 7, no. 1, pp. 76–91 (recounting views of Fischel, Brannon, and others on defence
teams) (available on Cornell’s eCommons web site).

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anthropologist Ruth Benedict.65 Popular at the time, this 1946 monographcommissioned by the US Office of War Information later drew criticism.66
Surely it did not alert its readers that World War II had created fissures inJapan’s patriarchal society, and thus altered the lot of Japanese women.67
Fischel also threw herself into “The Social Whirl”.68 She travelled
throughout Japan and other Asian countries, dined with Hirohito’s brother,played tennis and went horseback riding with Justice Röling, learned to
ski from a Swiss instructor in the Japanese Alps and to ice skate from theViennese wife of the so-called Mikimoto Pearl King, Kōkichi Mikimoto.69
Her many ‘beaux’ included a head of the Canadian Legation later exposed
as a KGB spy and, in an on-again, off-again way, Brannon, with whom
she posed, fan in hand, in contrasting kimonos.70 Her liaison with Brannon ended when they returned home – Fischel to Logan’s New York office, where she worked on the Tokyo defendants’ unsuccessful bid for US
Supreme Court review. 71 After recovering from tuberculosis apparently
contracted in Japan, Fischel earned a law degree from the University ofSouthern California and became a trial attorney in Los Angeles.72 She retired after nearly six decades of legal practice in 2015, at the age of ninety-five.73
65

66

67

68
69
70

71

72
73

Fischel, 2009, p. 58, see above note 3 (quoting Ruth Benedict, The Chrysanthemum andthe Sword: Patterns of Japanese Culture, Houghton Mifflin, Boston and New York, 2005,
p. 49).
See Ian Buruma, “Foreword to the Mariner Books Edition”, in Benedict, 1946, pp. vii–xii,
see above note 65.
See Thomas R.H. Havens, “Women and War in Japan, 1937–45”, in American Historical
Review, 1975, vol. 80, no. 4, pp. 913–34.
Fischel, 2009, p. 105, see above note 3.
Ibid., pp. 68, 79–81, 106–08, 165, 190, 232, 235, 25762, 278–89.
Ibid., pp. 68–76, 101–02, 105, 115, 124–30, 142–44, 180–82, 236–39, 251–54, 279, 289–
90, 311. For a photo of the couple in kimonos, see ibid., p. 237.
Ibid., pp. 307–10 (discussing Hirota v. MacArthur, 338 U.S. 197, 20 December 1948 (percuriam denial of defendants’ motion to file habeas corpus petition)).
Ibid., pp. 311–20.
Martha Neil, “Retired lawyer, 95, worked at ‘Tokyo Trials’ as legal secretary after WWII,
knew Japanese leaders”, ABA Journal, 5 April 2016 (available on its web site). She is still
listed as a member at State Bar of California, “Elaine Betty Fischel #24275” (available on
its web site). But in a 14 January 2019 e-mail to this author, Professor Bernard J. Hibbitts
reported that it was his understanding that she died in 2017, just before her ninety-sixth
birthday, from a pulmonary disease related to the tuberculosis she had contracted in Tokyo.
No official death notice could be located.

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6.4.2. Grace Kanode Llewellyn
The notion that more women held more significant roles at Tokyo than at
Nuremberg may be traced to no less a personage than President Webb. On
1 July 1946, a male American prosecutor introduced the Tribunal to “Mrs.
Grace Kanode Llewellyn of the District of Columbia and United States
Supreme Court Bars”, one of the seven lawyers named in the passage
quoted above. Webb responded: “We welcome you cordially. You probably are the first woman to appear before an International Military Tribunal”.74 Webb was wrong in his supposition, for two women had enteredappearances at Nuremberg in December 1945, the same month that Llewellyn went to Tokyo.75 Yet the first woman to speak on the record in sucha tribunal was likely Llewellyn – a fashion-conscious, twice-divorced forty-four year old, a graduate of what is now George Washington University
Law School who had been practicing in Washington, DC law offices formore than a decade.76
According to a profile by Shana Tabak, Llewellyn served as a Tokyo prosecutor for eight months, with her court presentations “demonstrating her significant role in introduction and defense of evidence documenting Japanese aggression”.77 Llewellyn said nothing at her first ap74

75

76

77

Transcript of proceedings, 1 July 1946, p. 1690 (https://www.legal-tools.org/doc/58ae8f/);
see Shana Tabak, “Grace Kanode Llewellyn: Local Portia at the Tokyo War Crimes Tribunal”, in The George Washington University Law School International and Comparative
Law Perspectives, Fall 2013, p. 7 (quoting transcript) (available on Issuu). Llewellyn is reported to have sat at the prosecutors’ table as early as the first day of trial: Guillemin, 2017,p. 186, see above note 3. Webb’s supposition that she was also the first woman to appear
before a tribunal persisted. See “Grace Bliss, Prosecutor in War Trials, Dies at 56”, Washington Post, 29 January 1958, p. B2; Sedgwick, 2012, p. 36, see above note 43.
Letters attesting to appearances on 15 December and 20 December may be found in theFite papers, see above note 56, and the Margolies and Zetterberg Nuremberg papers, “Employment Papers of Harriet Zetterberg, 1945–1948”, Item 1, US Holocaust Memorial Museum (available on its web site). Research to date indicates that the first woman to addressa court at Nuremberg was US prosecutor Sadie Arbuthnot, who, in the case against Nazi
judges, described a document book on 21 April 1947. See Transcript for Nuremberg Military Tribunal (‘NMT’) Case 3: Justice Trial, Harvard Law School Library, Nuremberg Trials Project, pp. 2432–67 (http://nuremberg.law.harvard.edu/).
See Tabak, 2013, see above note 74; Irene Hasbrook, “Brains Get Clients out of Jail, but
Clothes Help Sway Juries, Says Woman Lawyer”, Washington Post, 11 May 1934, p. 13;“Mrs. Grace Llewellyn”, Washington Post, 17 February 1948; Evening Star, 1946, seeabove note 44.
Tabak, 2013, p. 7, see above note 74. For a report on one Llewellyn’s appearance, see“Manchuria Phase of Case Resumes at Tribunal Session”, Nippon Times, Tokyo, 31 July

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pearance, but on four subsequent days, she proffered portions of the prosecution’s evidence supporting charges of Japanese aggression in Manchuria.78 There was little drama in these presentations, which did not entail
examination of live witnesses. Rather, Llewellyn read multi-page exhibit
after multi-page exhibit aloud in open court. However, so did many of themen throughout the document-heavy prosecution, and the sheer number
and complexity of the exhibits Llewellyn put forward indicate that she
contributed significantly to shaping this phase of the prosecution’s case.
In the courtroom, moreover, Llewellyn displayed tenacity in fighting backchallenges posed by the lawyers for the accused. On one such occasion
she coolly told the Tribunal: “The prosecution anticipated this query fromthe defense”, and responded by submitting a prepared certification; thedocument was promptly admitted into evidence.79
Yet women’s substantive contributions tended not to draw as muchmedia attention as gender angles. One news article in April 1946 nicknamed several Tokyo women “Portia”, after Shakespeare’s legalistic heroine.80 In the same time frame, at Nuremberg, the Associated Press dubbed
two women who litigated against each other “Opposing Portias”.81 One
cannot help but wonder if such theatrical flourishes were meant to suggest
a person playing at, rather than practicing, the law.82 In any event, thoseTokyo “Portias” were Grace K. Llewellyn and two of her colleagues, Virginia Bowman and Bettie E. Renner. All three appeared the same week in

78

79
80
81

82

1946, Personal Papers of Frank S. Tavenner, Jr. (‘Tavenner Papers’), Box 13, available in
UVA IMTFE, see above note 13.
Transcript of proceedings, 10 July 1946, pp. 2270–74 (http://www.legal-tools.org/doc/
12bb5e/), 30 July 1946, pp. 2707–18 (http://www.legal-tools.org/doc/759b4d/), 31 July
1946, pp. 2802, 2912–2,947 (http://www.legal-tools.org/doc/432ea5/), 1 August 1946, pp.
2949–59 (http://www.legal-tools.org/doc/55ede2/).
Ibid., 31 July 1946, pp. 2802, 2924–27.
“Another Portia”, Lethbridge Herald, Alberta, Canada, 18 April 1946, p. 3.
“Opposing Portias at Nuremberg Trials”, Associated Press photo of prosecutor Belle Mayer and defence counsel Dr. Erna Kroen, 10 October 1947 (on file with author).
Positive uses of the term exist, and one Nuremberg woman, in fact, graduated from what
then was called Portia Law School: New England Law, Boston, “Catherine E. Falvey”,(available on its web site). Yet, the point bears pondering given other uses, not to mention
connotations surrounding the stage Portia’s lawyerly nemesis, ‘Shylock’.

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a Los Angeles Times photo beside two additional US lawyers, Eleanor
Jackson and Lucille C. Brunner.83
6.4.3. Virginia Bowman and Lucille Brunner
Bowman and Brunner had earned their law degrees at Southeastern University.84 Sources call Bowman the “secretary” for the prosecution section’s Executive Committee; still, her work at Tokyo included drafting amemorandum on whether to charge Kido, the Hirohito advisor on whose
defence Fischel would work.85
As for Brunner, documents label her variously as “Stenographer”,“reporter”, or “Analyst”,86 even though she had worked at the Criminal
Division of the US Department of Justice before arriving at Tokyo.87
6.4.4. Bettie Renner
Also coming from the Criminal Division was another of the women depicted in the Times, Bettie Renner. 88 One source indicated that Renner
contributed to a preliminary judgment by President Webb; however, this is
uncorroborated, and it seems questionable that someone on the prosecution staff would have been tasked to work with chambers.89 But there isno question that Renner, a US government attorney and “FBI Girl”, 90
played an important role in Chief Prosecutor Keenan’s staff. No fewer
than 10 prosecution documents credit her as the “analyst” who reviewed,
83

84
85

86

87
88
89

90

See “Allies Prepare to Try Jap War Criminals”, Los Angeles Times, 15 April 1946, p. 3,
available in Phelps Collection, Box 2, see above note 13.
Evening Star, 1946, see above note 44. That DC institution no longer exists.
Ibid.; Guillemin, 2017, p. 232, see above note 3; “Minutes of the Seventh Meeting of Executive Committee”, 18 March 1946, p. 2, Roy L. Morgan Papers (‘Morgan Papers’), Box
1, available in UVA IMTFE, see above note 13.
See International Prosecution Section (‘IPS’), Doc. No. 3344-A, Excerpts from Interrogation of General Hiroshi OSHIMA [Ōshima], 1 February 1946 (https://www.legal-tools.org/
doc/c0f904/); Transcript of proceedings, 23 September 1946, p. 6061 (http://www.legaltools.org/doc/210ac0/); IPS, Doc. No. 1503, Analysis of Documentary Evidence, 30 April
1946, second page (https://www.legal-tools.org/doc/ae2379/, https://www.legal-tools.org/
doc/bd5768/).
Evening Star, 1946, see above note 44.
Ibid.
On the report that ‘Betty E. Renner’ worked on this draft judgment with Webb, see Sedgwick, 2012, pp. 35, 316 n. 118, see above note 43.
See “Link Woman’s Slaying with Oakes Murder”, Chicago Tribune, 27 May 1950, p. 1;“Ex-FBI Girl’s Body Found in Well”, Pittsburgh Press, 20 April 1950, p. 1.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryorganized and compiled long lists of government statements, news articles,
telegrams and other information to be adduced as evidence, against multiple accused persons, of charges including economic and military aggression in places as varied as China, Indochina, Korea, Manchuria and thePhilippines. 91 Renner’s name resurfaced in the press not long after theclose of proceedings at Tokyo, on account of her violent death in 1950 in
the Bahamas.92
6.4.5. Eleanor Jackson
The last of those in the Times photo, Eleanor Jackson, had been the only
woman in the class of 1943 at Berkeley Law (University of California,
Berkeley, School of Law); she then served as a federal law clerk, assisting
her judge in preparing the landmark dismissal of an indictment against 27
interned Japanese-American draft resisters.93

91

92

93

See IPS, Doc. No. 1210, Analysis of Documentary Evidence, 9 April 1946 (https://www.
legal-tools.org/doc/4b1981/), Doc. No. 1309, Analysis of Documentary Evidence, 12 April
1946 (https://www.legal-tools.org/doc/4b1981/), Doc. No. 1410, Analysis of Documentary
Evidence, 18 April 1946 (https://www.legal-tools.org/doc/a1e8d5/), Doc. No. 1415, Analysis of Documentary Evidence, 22 April 1946 (https://www.legal-tools.org/doc/a1e8d5/),Doc. No. 1503, Analysis of Documentary Evidence, 30 April 1946 (https://www.legaltools.org/doc/a1e8d5/); Doc. No. 1505, Analysis of Documentary Evidence, 1 May 1946
(https://www.legal-tools.org/doc/a1e8d5/). See also Doc. No. 1411 – Analysis of Documentary Evidence, 22 April 1946 (https://www.legal-tools.org/doc/a1e8d5/), Doc. No.
1414 – Analysis of Documentary Evidence, 22 April 1946 (https://www.legal-tools.org/
doc/a1e8d5/), and Doc. No. 1461 – Analysis of Documentary Evidence, 26 April 1946
(https://www.legal-tools.org/doc/a1e8d5/), in Tavenner Papers, Box 24, see above note 77;“Draft List of Categories of Witnesses, 9 March 1946”, in Morgan Papers, Box 2, seeabove note 85.
In addition to articles cited above in note 90, see Cathleen LeGrand, “Another Look at a
Bahamian Mystery: The Murder of Sir Harry Oakes: A Critical Literature Review”, in International Journal of Bahamian Studies, 2010, vol. 16, p. 100; “Bahama Police Hunt
‘Guard’ in Slaying of Yank Woman”, Stars and Stripes, 23 April 1950, p. 3.
Bonnie Azab Powell, “One Tough Case”, Transcript Magazine, 3 January 2009 (describing US District Court for the Northern District of California, United States v. Kuwabara,
56 F. Supp. 716, 22 July 1944) (available on Berkeley Law’s web site). Unless otherwise
cited, all information and quotes in this paragraph are from this source. Jackson’s role inthis case is recounted in Eric L. Muller, Free to Die for Their Country: The Story of theJapanese American Draft Resisters in World War II, University of Chicago Press, Chicago,
2011, pp. 131, 135–36.

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6. Glimpses of Women at the Tokyo Tribunal

At first, she was eager to join the IMTFE prosecution. But in a 2009 interview, Jackson recalled her disappointment in the tasks assigned, 94 in
MacArthur’s decision not to prosecute Hirohito, and in the social scene:“Housed in a drafty YWCA in bombed-out Tokyo, she caught diphtheria
and worked mainly as a ‘geisha, going to parties and ballroom dancing’with the assembled dignitaries”. Her dance partners included “Brigadier
General John Profumo, then chief of staff to the British Mission in Japanand as yet unsullied by the ‘Profumo Affair’”. The quoted self-reference
to “geisha” is jarring, given the tendency of Tokyo occidentals to equate
the term with ‘prostitute’.95 In any event, Jackson quit to work elsewhere
in Tokyo, and by 1948 she had opened a solo law practice in Los Angeles.
Her storied career representing Black Panthers, death row inmates, civilrights activists, and a Nobel Prize laureate – sometimes at the US Supreme Court – extended into her nineties.96 At the time of writing, she islisted as an attorney in New York City.97
6.4.6. Coomee Strooker-Dantra
Jackson’s experiences at Tokyo differed considerably from those of thewoman described in Tokyo documents as “Mrs. C. R. Strooker”, and inother sources by some variant of her four names, “Coomee Rustom
Strooker Dantra”. 98 The “Opening Statement: Aggression against theNetherlands” listed Strooker fourth among the lawyers called “associates”
of the Associate Counsel in the Netherlands Division.99
94

95

96

97

98

99

For an example of Jackson’s work as an ‘analyst’, see IPS, Doc. No. 1418 – Analysis ofDocumentary Evidence, 23 April 1946, Tavenner Papers, Box 24, see above note 77(https://www.legal-tools.org/doc/a1e8d5/).
See Brackman, 1987, p. 12, see above note 3 (writing “I would not class a geisha as a prostitute unless she was specifically identified as one”).
Ibid. See Jan Hoffman, “Public Lives; 6 Decades of an Unconventional Life”, New YorkTimes, 10 September 1999; Rick E. Mordecon (dir.), Rebel With Cause – The Eleanor
Jackson Piel Story, 2012 (video of her, at age ninety, recounting her post-Tokyo career)(available on YouTube).
See “Piel, Eleanor Jackson”, FindLaw (available on its web site under “Lawyer Directory”); see also State Bar of California, “Eleanor Jackson Piel #18168” (available on its website).
See Telephone Directory, pp. 3, 7, see above note 13; Schouten, 2018, pp. 247, see above
note 1.
See Document No. 6912, Opening Statement: Aggression against the Netherlands, November 1946, cover page (http://www.legal-tools.org/doc/f88733/); Schouten, 2018, p. 247,
see above note 1. Other women on non-US prosecution teams included: for Australia, Bet-

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Born in Rangoon, Burma, then part of British India – today, Yangon,
Myanmar – and educated in law at Cambridge University, she had drawn
attention as early as 1929.100 That year, a London correspondent praised
the intervention, on behalf of “Burmese feminists”, by “a young Parsee
barrister”, “Miss Coomee Dantra, for whom some admirers predict an illustrious career in the political sphere”.101 She married a Dutch businessman in the 1930s, gave birth to a son and daughter, and, after the war,
practised at the Dutch Ministry of Foreign Affairs – a posting that led herto the Tokyo prosecution staff.102
Strooker seems to have had greater responsibility than most other
women at Tokyo. A prosecution document dated September 1946, amonth after Llewellyn’s appearances had concluded, contemplates her as
the only woman who is going to present part of the prosecution’s case on
alleged Japanese crimes in the Dutch East Indies.103 Perhaps this degree of
responsibility was due to the nature of her delegation. There were few
Dutch lawyers at Tokyo, and, according to Schouten, “none of them wasversed in international criminal law nor, with the exception of Mrs
Strooker, familiar with the Anglo-Saxon legal system”.104 Thus Strooker,

ty Burrowes and Lena Garrett; for the United Kingdom (besides Culverwell, discussed
above text accompanying notes 51–52), Melville Lawrence, Miriam Prechner, and Constance M. Rolfe; and for New Zealand, Olive Marshall. See ibid., pp. 4–7; Sedgwick, 2012,
p. 35, see above note 43.
100 See Schouten, 2018, p. 247, see above note 1; Our Lady Correspondent, “A Maid in Mayfair: Gossip from London Town”, Advertiser, Adelaide, Australia, 4 April 1929, p. 7
(available on the National Library of Australia’s web site).
101 Ibid. (further reporting, in dispatch subtitled “An Eastern High Brow”, that “[s]he wasthoroughly popular at school, but naturally the flapper wits had to christen her house “Dantra’s Inferno””).
102 Rob van der Zalm, “Strooker, Shireen”, in Digitaal Vrouwenlexicon van Nederland [Digital Women’s Lexicon of the Netherlands], undated (profiling the lawyer’s daughter, whoenjoyed a career in the theatre before her death in 2018) (available on its web site). See
Schouten, 2018, p. 247, see above note 1 (writing that Strooker worked as a translator in
the Netherlands).
103 See “Assignment of Attorneys to Phases of Case September 22, 1946”, Tavenner Papers,
Box 3, see above note 77. The other two were Grace Kanode Llewellyn, discussed aboveat text accompanying notes 74–79, and Helen Grigware Lambert, discussed below at text
accompanying notes 109–118.
104 Schouten, 2018, pp. 248, 251, see above note 1.

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like Llewellyn, joined her male colleagues in proffering multiple exhibits
and then reading them aloud in open court.105
Interpersonally, Strooker appears to have remained a bit apart, describing herself in one letter as a “middle-aged women, who gets flustered” and “tries to please everybody”, and relating her concern that a colleague “held prejudices against her due to the colour of her skin”.106 Nevertheless, Strooker maintained a social schedule that included dinner parties, travel and other engagements, some with US lawyers like Renner andBowman. 107 Her presentation of evidence won praise from President
Webb, who said on her first day in court that “my colleagues and I who
had heard you assure you that we regard you as a distinct acquisition to
the Bar of this Tribunal”, and on her last day: “It has been a pleasure tolisten to you, Mrs. Strooker”. Both times she responded: “Thank you,your Honor”, as was customary of her profession.108
6.4.7. Helen Grigware Lambert
A final milestone in the Tokyo women’s participation occurred in the lastdays of the prosecution’s case. As reported in the 24 February 1948 Stars
and Stripes: “A comely brunette American woman rose among the prosecutors at the Tokyo International War Crimes Trial and for one hour summarized the allied charges against burley Naoki Hoshino, Tojo’s actual
ruler of the puppet state of Manchukuo”. 109 She was Helen Grigware
Lambert, the last of the women named in the passage quoted above.
Lambert’s feat gained her entry into the tiny club of women who
gave opening or closing statements at Tokyo or Nuremberg.110 Lambert
105

Transcript of proceedings, 3 December 1946, pp. 11669–757 (http://www.legal-tools.org/
doc/039e5e/), 6 December 1946, pp. 12169–244 (http://www.legal-tools.org/doc/2cedf9/).
106 Ibid., p. 252 n. 46 (quoting Strooker letter of 16 May 1946) (spelling as in original); ibid.,
p. 253 n. 56 (citing letters dated 12 June 1946, 27 April 1946, and 29 October 1946).
Strooker’s daughter would speak of the effect that her own skin colour had on her career.
Van Zalm, undated, see above note 102.
107 Schouten, 2018, p. 255 and n. 66, see above note 1 (referring to “Virginia Bowen”).
108 Transcript of proceedings, 3 December 1946, p. 11757 (https://www.legal-tools.org/doc/
039e5e/) (quoted in Schouten, 2018, p. 246, see above note 1), 6 December 1946, p. 12244(https://www.legal-tools.org/doc/df06fd/).
109 Ian [Yōnosuke] Mutsu, “Lady Attorney Sums Up Tribunal Hoshino Case”, Stars andStripes, Pacific Edition, 24 February 1948, p. 1 (spelling as in original), Tavenner Papers,
Box 13, see above note 77.
110 In addition to Lambert, research to date has identified five others, all at Nuremberg. Preceding Lambert were prosecutors Sadie Arbuthnot, who read parts of the closing in the

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took over the reading of the Tokyo summation from the British Associate
Prosecutor, Arthur Comyns-Carr, and 43 transcript pages later, she handed
it off to his Chinese counterpart, Judge HSIANG Che-Chun [XIANG
Zhejun].111
In her segment, Lambert summarized the charges against defendant
Hoshino, referring frequently to testimonial and documentary evidence
adduced at trial. As Stars and Stripes reported, she endeavoured to showthat defendant Hoshino, in his role as head of an entity known as the General Affairs Board, “exercised a powerful, if not a completely dominant,influence in the Manchukuoan administration”.112 Furthermore, Lambert’s
argument connected that defendant to multiple illegal acts, ranging from
active support for Japan’s military expansion to maintenance of an opium
trade. Repeatedly, she challenged the veracity of evidence in opposition;
by way of example, she ridiculed one defence witness who had testified
both that “he handled Hoshino’s business” and “at the same time that
Hoshino had no business”.113
A week or so after her appearance in court, Lambert provided hersuperiors with a mordant dismissal of the defence response. “Most facts
included are unsupported or distorted”, she wrote, “and these infrequent
factual sequences are hung together with some startling passages on thelaw, which, although they seem to be conjured up out of some opiate
dream, made this assignment anything but dull”.114
Justice Trial on 13–14 October 1947, and Cecelia Goetz, who read part of the opening in
the Krupp trial on 8 December 1947; what is more, Dr. Agnes Nath-Schreiber was the solelawyer representing the respondent in a three-day contempt trial on 29–31 October 1947.
See Amann, 2011, pp. 612–13, see above note 48; Transcript for NMT Case 3: Justice Trial, pp. 6055–206, 9661–77, 9743–60, see above note 75. Succeeding Lambert were prosecutor Mary Metlay Kaufman, who gave part of the closing in Farben on 10 June 1948,“Green Series”, vol. VIII, pp. 1030–43, see above note 17, and Dr. Elisabeth Gombel, theonly woman lead defence counsel at either courthouse, who spoke on behalf of her clientin the Ministries Case, see Opening Statement (available on the Deutsche Digitale Bibliothek), and Final Argument for Ernst Wilhelm Bohle, 11 January 1948 (available on University of Georgia’s digital commons).
111 Transcript of proceedings, 24 February 1948, pp. 40925–68 (http://www.legal-tools.org/
doc/95aaf2/).
112 Ibid., p. 40928.
113 Ibid., p. 40971. See also ibid., pp. 40975–6 (declaring another defence claim “extraordinary and it is suggested difficult to believe”).
114 Analysis of Defense Summation on Manchurian Phase, 11 March 1948, Tavenner Papers,
Box 6, see above note 77.

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Lambert’s confident tone, in this memorandum and in the courtroom, reflected a dozen years’ experience: after graduating from Spokane’s Gonzaga Law School, Lambert had practiced as an attorney at theFederal Land Bank, as a Navy judge advocate, and as a law clerk to a federal appellate judge in San Francisco.115 She went to Tokyo sometime after V-J (Victory over Japan) Day to join her husband, a journalist based
there following his Navy discharge.116 Reportedly, the couple later “traveled the world as she continued her career as a lawyer and then as a noted
painter and art critic”.117
Yet Lambert’s accomplishments did not spare her the gender angle.
The 1948 Stars and Stripes article mentioned her marital status as well as
her physical appearance, and a 1935 item heralded her as her law school’s“first Portia product”.118 In her sharing of that Shakespearean nickname aswell as her lawyerly accomplishments, Lambert was sister to other women, at Nuremberg and Tokyo alike.
6.5. Conclusion
Immediately after World War II, women played important roles at international tribunals in Nuremberg and Tokyo. Many were lawyers or performed legal work in prosecution and defence teams. This chapter endeavours to depict these women as more than glimpses in the Tokyo Trial
frame, by exposing their invisibility in many standard accounts, by fillingout their profiles, and by comparing them with counterparts at Nuremberg.
The chapter points to the difficulty of tracing women, not only because ofchanges in surnames after marriage or divorce, but also because their contributions to pleadings and the like frequently went uncredited. At bothTokyo and Nuremberg, job titles like ‘analyst’ and ‘stenographer’ tended
to obscure women’s law-related contributions.

“Gonzaga’s First Portia Scores”, Spokesman-Review, Spokane, Washington, 15 August
1935, reprinted in Foley Library, Gonzaga University, “First Class Law School, or None at
All: GU Law School Turns 100: 1912–1940” (available on its web site); Earl Martin,“Message from the Dean”, The Lawyer, Summer 2008, p. 3 (available on Issuu); “Helen G.
Lambert”, Washington Post, 6 December 1993 (available on its web site).
116 Martin, 2008, see above note 115 (adding that her husband, Tom Lambert, also was a
Gonzaga graduate).
117 Ibid.; Washington Post, 1993, see above note 115.
118 Spokesman-Review, 1935, see above note 115.
115

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Three Tokyo women were recognized as lawyers and permitted toaddress the IMTFE, but unlike their male counterparts, none was allowed
to conduct examinations of live witnesses. Such limitations ebbed over
the timespan of the post-World War II trials project, so that in the subsequent proceedings at Nuremberg, numerous women lawyers took on significant courtroom roles. Still, it must be acknowledged that nearly every
datum established in this chapter provokes new questions. By way of example, all three women who addressed the Tokyo Tribunal had been married, while many of the other women on legal teams there were single;
whether marital status correlated with responsibility seems a question
meriting further investigation.
This chapter’s focus on litigation teams, moreover, points to a needto study Tokyo women who filled other professional roles, working in judicial chambers or as court reporters, interpreters, or journalists.
Filmmaker Kobayashi’s foregrounding of Vivien Bullwinkel and Shizuko
Hirota likewise points to the need to study women who bore witness to
atrocities and also women associated with the Class A war criminals. Of
note, too, are the women among the Class B and C war criminals – women like Iva Toguri d’Aquino, known as ‘Tokyo Rose’ – who were held inthe same prison as the Tokyo Trial defendants. 119 The identities, backgrounds and experiences of all such women await discovery and discussion.
Also awaiting research are questions of intersectionality. CoomeeStrooker’s sense of discrimination based on her South Asian ancestry underscores the likelihood that the experiences of persons of colour differedfrom those of others – a supposition that might be tested by research into
Tokyo women like Hannah Kato and Tamiko Ikeda, both members of theprosecution staff.120 In this vein, one of the Tokyo women profiled in thischapter, Elaine B. Fischel, later wrote: “Although “Jap” was a term commonly used by Americans at the time, I wish I had not used what is now
119

See John L. Ginn, Sugamo Prison, Tokyo: An Account of the Trial and Sentencing of Japanese War Criminals in 1948, by a U.S. Participant, McFarland & Co., Jefferson, North
Carolina and London, 1992, pp. 34–36 (mentioning women detainees, with reference to
Iva Toguri d’Aquino, an American who was sent home, convicted in 1949 of treason on
account of her ‘Tokyo Rose’ broadcasts, and pardoned in 1977 by President Gerald Ford).
120 See Telephone Directory, 1946, pp. 5–6, see above note 13; see also above text accompanying note 106 (discussing Strooker). Kato was the ‘stenographer’ of the US interrogationof Japanese Army General Torashirō Kawabe: Transcript of proceedings, 24 November
1947, p. 33794 (http://www.legal-tools.org/doc/ee1b2f/).

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considered a degrading term to describe people I considered friends andcolleagues”. 121 Assumptions about Japanese society also tinged interactions. For instance, even as they accepted assertions of Japanese women’s
subservience and hired Japanese women to serve them as maids, waitresses and seamstresses, Fischel and other trial participants costumed themselves in traditional Japanese dress.122 Also thought-provoking is Eleanor
Jackson’s use of “geisha”, not only because some linked the term to ‘prostitute’, but also because of the many inter-ethnic or extramarital liaisonsthat formed at Tokyo.123 Such incidents suggest avenues for research into
intersections at Tokyo not only of race and ethnicity, but also of sex, sexuality, gender, culture and class.

121

Fischel, 2009, p. 65, see above note 3. See also Kobayashi (dir.), 1983, above note 2 (construing a Japanese defence lawyer’s closing as “a euphemistic expression of the underlying
race prejudice that had been evident throughout the entire length of the trial”).
122
See Fischel, 2009, pp. 67, 70, 152, 201, see above note 3; see also above text accompanying note 70.
123 See above text accompanying notes 94–95 (quoting Jackson), notes 70–71 (describing
Fischel-Brannon liaison). See also Ginn, 1992, p. 196, see above note 119 (recounting relationships between Japanese women and American GIs); Sedgwick, 2012, p. 108, seeabove note 44 (reporting that two Tokyo lawyers “married Japanese women and settled
there”).

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7______
Trial and Error in the Interpreting System andProcedures at the Tokyo Trial
Kayoko Takeda*
7.1. Introduction
With former Japanese military and government leaders as the accused andjudges, prosecutors and defence lawyers from a dozen nations, the International Military Tribunal for the Far East (hereafter, the ‘IMTFE’ or the‘Tokyo Trial’) was an international forum in which multiple languages
were used. Just as the Nuremberg Trial could not have taken place without
the provision of interpreting and translation services, the Tokyo Trial
could not have functioned without the work of interpreters and translators.
There are, however, stark contrasts between the two trials in terms of how
the interpreting systems were prepared and managed. Touted as the originof simultaneous interpreting, the Nuremberg Trial invested time and effort
before the start of the proceedings to train highly competent interpreters
as well as to ensure through ‘rehearsals’ that this novel system of simultaneous interpreting would operate smoothly. In comparison, at the Tokyo
Trial (and preceding Class B/C war crimes trials), there was a great dealof trial and error as to who would interpret and under what procedures
they would work. The aim of this chapter is to examine this ad hoc natureof how the interpreting system and procedures were established at the Tokyo Trial.
In accordance with the tribunal charter,1 interpreting between English and Japanese was provided throughout the proceedings. The tribunal*

1

Kayoko Takeda is Professor of Translation and Interpreting Studies at Rikkyo University
in Tokyo, Japan. Her main research interests lie in translation and interpreting in war, thehistory of interpreting and interpreter education. She is the author of Interpreting the Tokyo War Crimes Trial and a co-editor of New Insights in the History of Interpreting.
Under Section III “Fair Trial for Accused”, Article 9(b) states, “Language. The trial andrelated proceedings shall be conducted in English and in the language of the accused.
Translations of documents and other papers shall be provided as needed and requested”:
Charter of the International Military Tribunal for the Far East, 26 April 1946 (‘IMTFE
Charter’) (https://www.legal-tools.org/doc/44f398/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

also used interpreters of Chinese, French, Dutch, German, Russian andMongolian as needed. Communication in courtroom proceedings was
possible only through interpreters. Further, all documents submitted as
evidence had to be presented in both English and Japanese, one of which
was invariably translated.
That these interpreters and translators played an indispensable rolein enabling this multilingual discourse does not usually constitute a major
topic in discussions of the Tokyo Trial by historians and legal scholars.
However, an inquiry into the trial-and-error nature of the interpreting system and procedures not only reveals the impact of language issues on theproceedings but also adds to the discussion on the ad hoc aspects andpower dynamics of the tribunal.
There have been a number of studies on the practice of interpretingand its effect on the proceedings at multilingual tribunals. For instance,
Francesca Gaiba presents the most extensive description in English of interpreting arrangements at the Nuremberg Trial to date;2 among the scholarly works on interpreting and translation at the International Criminal
Tribunal for the former Yugoslavia (‘ICTY’), Ellen Elias-Bursać provides
the most comprehensive examination based on her observation, survey
and close readings of transcripts;3 and Ludmila Stern discusses working
conditions of interpreters at the ICTY, the International Criminal Tribunal
for Rwanda (‘ICTR’) and the International Criminal Court (‘ICC’) incomparison to national courts.4
There is one feature of interpreting at Tokyo, however, that clearly
distinguishes itself from other international tribunals. Namely, three ethnically and socially different groups of people engaged in three different
functions: (1) Japanese nationals, including government officials, interpreted the court proceedings; (2) ‘nisei’ (literally, second-generation; inthis context, persons born in the United States to Japanese immigrant parents) served as monitors, checking the accuracy of the interpretation; and

2

3

4

Francesca Gaiba, The Origins of Simultaneous Interpretation: The Nuremberg Trial, University of Ottawa Press, Ottawa, 1998.
Ellen Elias-Bursać, Translating Evidence and Interpreting Testimony at a War Crimes
Tribunal: Working in a Tug-of-War, Palgrave Macmillan, London, 2015.
Ludmila Stein, “What Can Domestic Courts Learn from International Courts and Tribunals
about Good Practice in Interpreting? From the Australian War Crimes Prosecutions to theInternational Criminal Court”, in T & I Review, 2012, vol. 2, pp. 7-30.

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial(3) a Caucasian5 US military officer worked as the language arbiter to ruleover disputed translations and interpretations. The present chapter argues
that this unique arrangement was devised on the basis of lessons learned
from the trial and error with interpreters at Class B/C trials that took placeprior to the Tokyo Trial.
Also, the initial stage of the Tokyo Trial was further characterized
by impromptu discourse in finalizing this interpreting system. Since thetribunal did not pay due attention to potential language issues in the preparation stage, it was mired by a number of problems with interpreting andtranslation once the court proceedings started. Unlike Nuremberg where
simultaneous interpreting was used, the consecutive mode was used at
Tokyo, which made it possible for court participants to discuss language
issues during the proceedings.6 Consequently, a considerable amount oftime was spent addressing procedural rules on interpreting, and thoserules were determined almost on an ad hoc basis in the course of the proceedings.
This chapter focuses on these trial-and-error aspects of interpretingat the Tokyo Trial. It first discusses the link between the interpreting problems at Class B/C trials and the unique composition of interpreters anderror correction mechanism for interpreting and translation at Tokyo. Itthen examines how procedural issues with interpreting were resolved overthe course of the trial. Lastly, it briefly recaps the interpreting arrangements at Tokyo in comparison to Nuremberg and touches on the relevanceof interpreting phenomena during the Tokyo Trial to the present-day international criminal justice system.
7.2. Lessons from Class B/C Trials: Three-Tier Interpreting System
7.2.1. Use of Local Translators and Interpreters During the
Preparation StageThe Allied occupation of Japan started on 28 August 1945. It was an immediate and vital requirement for the Supreme Commander for the AlliedPowers (‘SCAP’) to secure personnel who could translate and/or interpret
5

6

Although it may sound peculiar, the term ‘Caucasian’ is used in this chapter to maintainconsistency with its usage in the relevant archival documents.
In consecutive interpreting, the interpreter gives a rendition after the speaker pauses, as
opposed to simultaneous interpreting, in which the interpreter interprets a few seconds behind the source speech.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

between English and Japanese for its operations in occupied Japan. Although the US military dispatched over 5,000 nisei linguists (languagerelated personnel) to Japan, the sheer volume of language-related workand the complexity of some tasks exceeded their capacity. Accordingly,
SCAP had to resort to Japanese translators and interpreters procured by
the Central Liaison Office (an affiliate of the Japanese foreign ministry)7
and those directly hired by the US occupation army. 8 Thus, as part of
SCAP’s operations, Japanese citizens were involved, along with Allied
military linguists, in the preparation stage of the Tokyo Trial: translating
documents that could be used as evidence for arresting and indicting war
crimes suspects, and interrogating and taking affidavits from the suspects
and witnesses.
Although local interpreters and translators played an indispensablerole in preparing for the trial, it is highly likely that the tribunal initiallydid not plan to use Japanese nationals as court interpreters. Class B/C war
crimes trials held by US military commissions in Manila and Yokohama
were underway during the preparation of the Tokyo Trial. These trials
clearly indicate the US military’s preference for using its own personnel
as court interpreters no matter how poorly they performed.
7.2.2. Learning from Failures at Class B/C Trials
During the trial of General Tomoyuki Yamashita (29 October – 8 December 1945) in Manila,9 the US military commission first appointed three
Caucasian naval and marine officers as court interpreters, but they refused
to take the interpreter’s oath, citing their own incompetence in spoken
Japanese. In one of the US military correspondences concerning this incident, this problem was referred to as an “outrageous failure”.10 The court
7

8

9

10

The Central Liaison Office was established on 26 August 1945 to undertake negotiations
and administrative co-ordination between the occupation forces and the Japanese government. One of its responsibilities was to provide interpreters and translators for SCAP.
The Eighth US Army placed help wanted ads in newspapers almost daily to directly recruit
Japanese interpreters and translators. See Kayoko Takeda, “Guilt, survival, opportunities,
and stigma: Japanese interpreters in the postwar occupation period (1945-1952)”, inKayoko Takeda and Jesús Baigorri-Jalón (eds.), New Insights in the History of Interpreting,John Benjamins, Amsterdam, 2016, p. 227.
The Yamashita trial is well known as the origin of the doctrine of command responsibility
in war crimes trials.
CINCAFPAC ADV., a correspondence to CINCAFPAC Manila, 28 October 1945, in Records of the Allied Operational and Occupation Headquarters, World War II (Record Group331), US National Archives, College Park, MD.

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial

used its next choice – “best Nisei” linguists. However, due to their slow
and error-filled performance, the trial did not run smoothly. Thus, thecourt reluctantly had to rely on Yamashita’s personal interpreter, Masakatsu Hamamoto,11 who was also a prisoner of war.12
In the US military trials in Yokohama, nisei linguists were appointed court interpreters. Here again, due to their error-ridden performance,
the proceedings were often disrupted. For instance, in the trial of Tatsuo
Tsuchiya (18–27 December 1945), a prison guard, the defence lawyers
complained about the interpreters’ errors, and newspapers also reported oninterpreting problems. 13 The poor performance of court-appointed nisei
interpreters was a source of great concern for the Japanese government as
well. An internal document of the Central Liaison Office, dated 11 December 1945, indicates that Japanese officials were troubled by the inaccurate interpretation in the Yokohama court. 14 The Liaison Office evenplanned to propose to SCAP that the defendant be allowed to choose his
own interpreter, with a court-appointed official interpreter (a nisei linguist)in place to monitor renditions.15
The recruiting and testing of Japanese interpreters for the Tokyo
Trial took place in January and February 1946. 16 The above-mentioned
correspondences and documents involving SCAP, the US military in Manila and the Liaison Office clearly suggest that the Legal Section of SCAP,
which established the procedural guidelines of the IMTFE, was aware of
the interpreting issues in Manila and Yokohama. The IMTFE could notafford the same problems, given that it was an international event attract11

12

13

14

15
16

Masakatsu Hamamoto, a graduate of Harvard University, was a civilian attached to theImperial Japanese Army. He also worked as an advisor to President Laurel of the Philippines under Japanese occupation.
See details in Frank A. Reel, The Case of General Yamashita, Octagon Books, New York,
1949/1971, and Kayoko Takeda, Interpreting the Tokyo War Crimes Trial, University ofOttawa Press, Ottawa, 2010, pp. 69-71.
“Language Barrier Causes Recessing of Tsuchiya Trial: Interpreter Unable to Follow Testimony by Defendant”, The Nippon Times, 24 December 1945; and “Tsuchiya shōnin dai
ni tatsu”, The Asahi Shimbun, 25 December 1945.
Shūsen renraku chūō jimukyoku (Central Liaison Office), “Sensō hanzai saiban ni kansuru
ken” [Matters Regarding War Crimes Trials], 11 December 1945, in Hiromi Tanaka (ed.),BC-kyū senpan kankei shiryōshū: BC-kyū senpan saiban·shakuhō kankei shiryō [Documents Related to Class BC War Crimes Trials and Releases], vol. 4, Ryokuin Shobō, Tokyo, 2012, pp. 5-6.
Ibid., p. 6.
Takeda, 2010, pp. 30-31, see above note 12.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

ing close attention from the world as the Japanese counterpart of the Nuremberg Trial. The tribunal needed competent interpreters, regardless ofnationality or background, who could facilitate smooth proceedings,
which was the likely motivation for the unconventional decision of using
Japanese nationals as court interpreters at the Tokyo Trial.
7.2.3. Japanese Interpreters Working for the Former Enemies
A review of the trial records in Japanese indicates that a total of 27 Japanese–English interpreters worked during the Tokyo Trial, but only a handful of them regularly interpreted throughout the proceedings.17 About half
were associated with the Japanese foreign ministry, and the rest were bilingual Japanese citizens, including two former soldiers of the Imperial
Japanese Army. One interpreter’s father was a war crime suspect.18 In effect, these interpreters were hired by the former enemies to work in a trial
in which the lives of their former superiors and leaders were at stake. This
extraordinary arrangement would be analogous to former Nazis interpreting at Nuremberg.
The fact that Japanese nationals interpreted the court proceedings
tends to be overlooked in both popular and academic discourses. It is partly because these individuals rarely discussed their experiences interpretingfor the trial. Given the persistent negative view of the Tokyo Trial as victor’s justice among some Japanese,19 having worked for the former enemies to facilitate the convictions of former Japanese leaders could be a
stigma in Japanese society. Notably, the only Japanese interpreters known
to have agreed to interviews for publication did so after they had retired
and/or moved overseas.20
17

18

19

20

Tomie Watanabe, Tōkyō saiban no tsūyaku kenkyū: Tōjō Hideki shōgen o tsūjite [A Studyof Interpreting at the Tokyo Trial: Through Hideki Tōjō’s Testimony], Master’s thesis,
Daitō Bunka University, 1998, pp. 10-11.
Hideki Masaki, an official of the Japanese foreign ministry, interpreted for his father, Jinzaburō Masaki, during his pretrial interview. Jinzaburō was a well-known general in theImperial Japanese Army. During the investigation by the International Prosecution Section,
Jinzaburō was arrested as a war crime suspect but never indicted. Hideki Masaki served as
an interpreter for Emperor Hirohito from 1959 to 1984.
For one example of discussions on various popular views of the Tokyo Trial in Japan, see
Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of WorldWar II, Harvard University Press, Cambridge, 2008, pp. 1-4.
Masaomi Kondō and Tomie Watanabe, “Booth no naka no Itami Akira: Tōkyō saiban
tsuyakusha, Shimada Masakazu ni niku”, in Daito Forum, 2000, vol. 13, pp. 16-35; Takashi Oka, interview by the author, 2005. Shimada retired in Brisbane, Australia, and Ta-

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial

There is also a popular misperception that nisei, not Japanese nationals, played the role of court interpreters at the Tokyo Trial.21 It is perhaps attributable to the fact that the nisei monitors engaged in interpreting-like task on certain occasions, such as simultaneously reading translations of prepared statements as the speaker read the source texts aloud
during the trial. Also, nisei did work as court interpreters in a number ofClass B/C war crimes trials that were taking place in several locations in
the Asia-Pacific – hence the possible confusion about the nisei being thecourt interpreters for the Tokyo Trial.22
7.2.4. Checking Mechanism
With Japanese citizens, including those from the Japanese foreign ministry, working as court interpreters, it is presumed that the tribunal was suspicious of their impartiality as well as loath to appear dependent on citizens of the defeated nation. This is considered why the tribunal devised amechanism to oversee the interpreters and check the accuracy of theirrenditions.23 The idea of this checking mechanism can be traced back to
the procedural rules and regulations for Class B/C trials held by the US
military in Yokohama.
The procedural rules and regulations at Yokohama were establishedin February 1946, which overlaps with the timing of the IMTFE’s recruiting of Japanese interpreters. The fact that the rules and regulations were
established two months after the beginning of the trials in Yokohama indicates, again, the ad hoc nature of addressing language issues, among otherprocedural details. The references to interpreting in the rules and regulations were presumably in response to the problems with the court interpreters at Yokohama and to the above-mentioned request from the Liaison

21

22

23

kashi Oka retired in Washington, D.C. For details, see Takeda, 2010, pp. 38-39, 56-62, 7274, 98, 114, 121-30 and 158, see above note 12.
The author received this explanation in 2007 during an official tour of the building used
for the Tokyo Trial on the premises of the Japanese Ministry of Defense. Also, see Shirō
Akazawa, Tōkyō saiban, Iwanami Shoten, Tokyo, 1989.
A best-selling novel, Futatsu no sokoku [Two Homelands], Toyoko Yamasaki, Shincho
Bunko, Tokyo, 1983, and a popular TV drama based on the novel, Sanga moyu, NHK,
1984, featured a nisei monitor/interpreter at the Tokyo Trial, which may also have popularized this misperception in Japan.
Takashi Oka, one of the Japanese interpreters, affirms this assumption in a 2005 interview
conducted by the author: Takeda, 2010, p. 74, see above note 12.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Office. They are summarized in a review of the occupation policies by
SCAP as follows:
The regulations barred any criticism of an interpreter, direct
or implied, in open court, until the chief interpreter had investigated the matter and had advised upon the correctnessof the translation. If the chief interpreter could not convince
both the prosecution and the defense, the complaining party
could request an off-record conference. In addition to thecourt interpreters, the accused were furnished with interpreters who sat with them throughout the trial.24

These regulations reveal that a mechanism was in place to address
errors in interpreting at the Yokohama court. The IMTFE appears to havetaken a similar approach, leading to the establishment of a system to regulate and check the interpreters’ work.
7.2.5. Monitors and Language Arbitration Board
In order to ensure accuracy in interpreting and translation, the IMTFE had
two stages of checking. To correct errors contemporaneously, nisei linguists monitored the performance of Japanese interpreters, which waspossible owing to the consecutive mode of interpreting. Disputes overtranslations and interpretations that could not be resolved through thisfirst checking mechanism were reviewed outside the courtroom by theLanguage Arbitration Board, with the language arbiter announcing theruling in court.
Four nisei took turns to monitor the accuracy of the Japanese interpreters’ renditions and make corrections on the spot, if necessary. They
also rendered all the prepared translations, such as the closing arguments
and the Judgment, which indicated the tribunal’s preference for using personnel from Allied forces rather than Japanese citizens whenever it waspossible.
At the top of the hierarchical structure of interpreting, a Caucasian
US military officer served as the language arbiter. In the Judgment of theTokyo Trial, there is a reference to how difficult interpreting and translation between Japanese and English was and to why the Language Arbitra-24

Supreme Commander for the Allied Powers, General Headquarters, History of the Nonmilitary Activities of the Occupation of Japan, 1945-1951, Nihon Tosho Center, Tokyo, 1990,
p. 81.

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trialtion Board was established. “Part a, Section I Establishment and Proceedings of the Tribunal” states:[T]he need to have every word spoken in Court translated
from English into Japanese, or vice versa, has at least doubled the length of the proceedings. Translations cannot bemade from the one language into the other with the speed
and certainty which can be attained in translating one Western speech into another. Literal translation from Japanese into English or the reverse is often impossible. To a large extent nothing but a paraphrase can be achieved, and experts inboth languages will often differ as to the correct paraphrase.
In the result the interpreters in Court often had difficulty as
to the rendering they should announce, and the Tribunal wascompelled to set up a Language Arbitration Board to settle
matters of disputed interpretation.25

When the defence or the prosecution challenged a translation or interpretation, the tribunal president referred the matter to the language arbiter. The arbiter was not necessarily proficient in Japanese but simply announced the decisions made by the linguists of the board who reviewed
the dispute outside the courtroom. In this way, the Language Arbitration
Board contributed to minimizing the time spent discussing languagerelated issues in court.
Additionally, as a Caucasian US military officer sitting in the prosecution area, the language arbiter functioned to emphasize that the US military was in charge of the procedure. It is presumed that the language arbiter also kept an eye on the nisei monitors. The monitors were all ‘kibei’(nisei who had some schooling in Japan and returned to the United States),
who had been most readily suspected of disloyalty to the United States. In
fact, three of the monitors had been detained in internment camps as enemy aliens after Japan’s attack on Pearl Harbor. The tribunal was mindfulthat the nisei monitors could be sympathetic to the Japanese defendants.26
In sum, this three-tier interpreting system at the Tokyo Trial was, atleast in part, a product of the lessons learned from the experiences with
25

26

Judgment of the International Military Tribunal for the Far East, November 1948, p. 17(https://www.legal-tools.org/doc/8bef6f/).
Kōzō Kinashi, a friend of David Akira Itami, states that Itami, one of the monitors, wassympathetic to the emperor and Hideki Tōjō; Kōzō Kinashi, “Hakuun raikyo”, in Daito
Forum, vol. 13, 2000, pp. 37-49.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

interpreters at preceding Class B/C trials held by the US military in Manila and Yokohama. Unprepared for the challenges of interpreting, thesetrials struggled with serious language issues and had to come up with solutions on an ad hoc basis. In order to secure smooth operation and accurate interpretation, the IMTFE came to employ Japanese citizens as court
interpreters and establish a three-tier system to check their performance.
7.3. Improvising Procedural Rules on Interpreting
7.3.1. Untrained Interpreters and Inexperienced Users of Their
Services
With the three-tier interpreting system in place, the Tokyo Trial convened
on 29 April 1946. However, there was still a great deal of trial and error incoming up with procedural rules and regulations on interpreting over the
first year of the court proceedings. The tribunal had still not dedicatedenough thought to the issues it might face in this unprecedented multilingual setting, or it simply did not have the capacity to foresee potential
problems with interpreter-mediated communication. The Japanese interpreters had received little interpreter training and the users of their services were equally inexperienced. Above all, there was no one who could
effectively lead the preparation of the interpreting arrangements. The
chief of the Language Section, a US naval officer, had little knowledge of
how interpreting between Japanese and English worked, and the mostcompetent nisei monitor, David Akira Itami, was a civilian who was not
given a leadership position within the tribunal.
For the first month of the trial, interpreters and monitors worked
without proper interpreting equipment or an interpreter booth. They had towork from a table on the floor, using a PA (public address) system in open
court to deliver interpretation. During a one-week recess in June 1946, aninterpreter booth was set up on the platform and IBM equipment identicalto Nuremberg’s was installed. As mentioned earlier, however, consecutive
interpreting was the principal mode at Tokyo, which made it possible forthe court participants to discuss language issues during the proceedings,
contributing to the prolonged length of the trial.
7.3.2. Court Expectations vs. Interpreter Limitations
From the beginning of the Tokyo Trial, the court records reflect a struggle
to negotiate a shared understanding of the interpreting process among thecourt participants. In particular, the president of the tribunal, Australian
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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial

judge William Webb, had certain expectations as to how interpretingshould be done and tried to impose them on the interpreters. These expectations, however, were mostly ill-informed and proved unrealistic when
they were crushed by the cognitive limitations and insufficient skills of
the interpreters. The court had to improvise practical procedural rules toresolve the problems to carry on with the proceedings.
On 3 May 1946, the first day of the court session, the chief of theLanguage Section beseeched Webb to address the issue that the interpreter
would not be able to interpret unless the speaker paused when signalled.
The court did not take any actions in response. On 6 May, Major Lardner
Moore of the US army, who was functioning as the language arbiter at thetime, delivered a formal request from the Language Section to the courtthat the speakers wait until the interpretation was completed, as the interpreters were not being given enough time to deliver full interpretations of
all the remarks. Wilfully or unwittingly disregarding the tribunal charter’s
article on language, Webb suggested that a summary would be sufficientfor the proceedings to save time. He had to be reminded by the chief ofthe Language Section that the charter stipulated the provision of language
services to ensure the accused a fair trial.27 Webb still insisted on a summarized interpretation.
On 14 May, the interpreter was struggling because the speaker was
reading a prepared statement without pause and the Japanese translation
was not available to the interpreter. In response to the interpreter’s request
to the speaker to break down his remarks, a frustrated Webb said, “Well,
this interpreter has no difficulty in reading passage for passage. I do not
see why he cannot string them all together”.28 The interpreter’s incomplete and inaccurate renditions caused a disruption of the court proceedings. Moore explained that the differences in sentence structure made interpreting between English and Japanese difficult. Webb responded, “Well,
I cannot understand yet why he can interpret paragraph for paragraph […]and yet not be able to string those paragraphs together”.29 Moore suggested providing the interpreter with the translation beforehand for preparedspeeches. Additionally, the chief of the Language Section conveyed a
27
28

29

IMTFE Charter, see above note 1.
Transcripts of the Proceedings of the International Military Tribunal for the Far East, p.
204, available on the Legal Tools Database (‘IMT Transcripts’).
Ibid., p. 216.

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The Tokyo Tribunal: Perspectives on Law, History and Memorystrong request from the defence for “a complete and accurate translation
verbatim”. Webb’s ruling was to continue summarization and provide afull translation to the defence later. Despite the Japanese lawyer’s repeated objections, Webb insisted that the speaker read the whole text without“interruptions” by the interpreter, promising a full translation at a latertime. All these comments by Webb reveal his ignorance of how cognitively taxing interpreting is and his cavalier attitude toward the language
needs of the accused.
On 15 May, in response to the defence’s persistent requests over a
period of several days, Webb finally granted permission for the Japanesetranslation of prepared remarks to be provided beforehand to the interpreters and the defence so that they could properly prepare, and for sentence-by-sentence interpreting instead of summarization.
On 23 July, the use of relay interpreting for a third language became
an issue when the first Chinese-speaking witness testified. In response to
the Japanese lawyer’s complaints about incomplete interpretations, Webbargued:Well, as I explained before, all this interpretation of every
word is not required in the interests of justice. It is requiredin the interests of propaganda. That is the whole point. Thiselaborate system of interpreting every word does not obtainin any national court. We try murderers there. We try men
who cannot speak the English language, but we do not haveall of this interpreting. I would like the Japanese to understand that. The Charter really is mostly concerned with theJapanese people understanding what is happening in thisCourt. It is not required in the interests of justice.30

The transcripts of the proceedings do not indicate a formal objection on the record by any court participant to this egregious remark by
Webb. Some discussion, however, must have taken place outside thecourtroom. Two days later, Webb communicated to the court Moore’s input that unnecessarily lengthy questions would make the interpreter’s taskdifficult, and added that making the translations available to the interpreters could reduce the difficulty of their task. Webb also referred to the difficulty of interpreting questions asked in the negative form, and advised
the court participants to use the affirmative form when possible. He then30

Ibid., pp. 2405-06.

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trialsaid, “I again urge counsel to make their questions short and clear, and to
give due notice of any passage from a report or other document which
they desire to be read to the witness”.31 This was the first sign of Webb’s
newly acquired understanding of interpreters’ requirements and his effort
to accommodate them.
On 19 August, when a prosecutor pointed out an interpreting error,
Webb asked for clarification from the interpreter. The interpreter beingpressed, Moore said “any question of the translation in open court simply
puts an added burden on the translators and is irritating to them”.32 On 11
October, based on out-of-court input from Moore, Webb advised the court
that: “We should all speak into the microphone, speak slowly, and speak
in short sentences if possible”.33 Here, Webb was attentive to how users ofinterpreting services could support interpreter performance. Later, in response to a prosecutor’s complaint about being interrupted by the interpreter, Webb said “our very efficient translators are always doing theirbest […] They have a most difficult task and they are doing it admirably.
That is the opinion of the Tribunal”.34 Five months after the opening of
the trial, this acknowledgment indicates that Webb came to appreciate thechallenge the interpreters faced and the indispensable role they played forthe court to function.
Almost a year after the tribunal convened, Webb stopped showing
any sign of ill-informed expectations for how interpreting should work.
The following procedural rules he announced on 29 April 1947 illustrate
how understanding and supportive Webb became of the interpreters overthe first year of proceedings:
all documents, including running commentaries of counsel,
be presented to the Language Division forty-eight hours inadvance in order to insure simultaneous interpretation [simultaneous reading of prepared translation], and that the Language Division be notified in advance of any deviations fromthe planned order of presentation.35

31
32
33
34
35

Ibid., p. 2478.
Ibid., p. 3981.
Ibid., p. 8776.
Ibid., p. 9178.
Ibid., p. 21281.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

7.3.3. Relay Interpreting
As previously mentioned, in addition to Japanese-English interpreters, thetribunal used interpreters of other languages when necessary. Trial records
indicate that the tribunal had not anticipated or prepared for issues involving the use of a third language. During the early stages of the trial, a significant amount of time was spent inside and outside the courtroom discussing whether the use of ‘non-official’ languages should be allowed incourt at all.
When General CHING Tehchun of China, the first Chinesespeaking witness, appeared in court on 22 July 1946, the initial arrangement was to provide relay interpreting with Japanese as the pivot language between Chinese and English. This was because the Language Section could not find a Chinese–English interpreter. The defence became
concerned about potential inaccuracies in relay interpreting. Also, thecourt did not appreciate the Japanese rendition preceding the English rendition for a Chinese remark. In other words, it did not want to wait for two
steps of interpreting to listen to the English rendition. President Webb
made a ruling on the spot to use a secretary of Judge MEI Ju’ao of Chinaas the Chinese–English interpreter, making English the pivot language inrelay interpreting between the three languages so that the court could listen to the English rendition first. The poor performance of this ad hoc interpreter drew complaints from both the defence and the prosecution, andoften disrupted the court proceedings. Problems with interpreters continued during the testimony of Puyi (former Emperor of Manchukuo). Webb
wrote to General Douglas MacArthur, asking for Chinese–English interpreters.36 In response, MacArthur sent his own interpreter to the court andpromised to bring more interpreters in from Shanghai.
7.3.4. Belated Inquiry to Nuremberg
The problems with this relay interpreting are probably what prompted the
IMTFE a month later to consult the Nuremberg Tribunal about the handling of multiple languages in court. A telegram from the Secretariat of

36

William F. Webb, Letter from W.F. Webb, President of IMTFE to General Douglas MacArthur, 20 August 1945, MacArthur Memorial, Norfolk, VA.

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial

the IMTFE to its counterpart in Nuremberg, dated 23 August 1946, asked
the following basic questions:37
1.
2.
3.
4.
5.
6.
7.
8.
9.

How many languages are spoken in court?
How many language translations are spoken simultaneously over the translator device?
What is the total number of interpreters and monitors
used at any one time?
Are the interpreters in open court or behind glass walls?
What is the distance between witness box and interpreters?
More than one court reporter for each language neededby the interpreter?
Where are official court reporters seated, near witness
or near interpreters?
How much space is used by interpretation personnel involving interpreters, monitors and others?
How are counsel, witness and interpreters’ speech activities coordinated?

Almost four months after the start of the trial, this belated inquiry illustrates the tribunal’s unpreparedness for the use of a third language incourt and the absence of any effort to learn from the interpreting arrangements at Nuremberg during the preparation stage. The response, dated 27
August 1946, 38 indicates that the court in Nuremberg had a wellestablished interpreting system in place. The information shared by Nuremberg, however, was not particularly useful because it was all based on
the use of simultaneous interpreting, which was not the predominantmode of interpreting at Tokyo.
7.3.5. Use of a Third Language by Prosecutors
When the French prosecutor, Robert L. Oneto, opened his case in Frenchon 30 September 1946, the defence raised an objection, citing non-

37

38

CINCAPAC, A telegram to General Secretary, IMT, Nuremberg, Germany, 23 August
1946, Records of the Allied Operational and Occupation Headquarters, World War II(Records Group 331), US National Archives, College Park, MD.
International Military Tribunal Nuremberg, A correspondence to CINCAPFPAC, 27 August 1946, Records of the Allied Operational and Occupation Headquarters, World War II(Records Group 331), US National Archives, College Park, MD.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

compliance with the charter article on language 39 and the difficulty ofchecking the accuracy of interpretation. The objection was overruled.
When Oneto read aloud documents, however, he did so in English. His
accent made it difficult for the interpreters to do their job. There was along discussion on what language was to be used by Oneto, and an irritated President Webb made a ruling to use English only. Oneto’s argument
for the use of French, however, continued into the next day when he started speaking French again despite the court’s ruling. Webb said it was “almost contempt” 40 and adjourned the court. Outside the courtroom, theFrench judge’s threat to resign led Webb to allow the use of French,41 ending the debate that had taken up two days of court time. Since English–
French and French–Japanese interpreters were available, there was no relay interpreting involved and the source speech was interpreted into two
languages concurrently.
The Soviet prosecution also insisted upon the use of Russian. The
defence objected again, referring to concerns about the disruption, delay
and non-compliance with the charter. It also insinuated there was a politically motivated pre-arrangement between the United States and the Soviet
Union regarding the use of Russian. Webb called this allegation offensive,
claimed that the charter did not exclude a third language, and handed overa ruling that the tribunal would allow the language of any of the countries
represented on the court.42 This debate over the use of Russian occupied
the whole afternoon session on 4 October 1946. During the presentationof the Soviet case for the prosecution, the prosecutor spoke in Russian,which was interpreted into English and Japanese concurrently.
7.3.6. Educating the Users of Interpreting Services
The discussion above illustrates how unfamiliar and unprepared the IMTFE was with effective use of interpreting services in this novel multilingual setting. During the initial stage of the trial, several procedural issues
arose around interpreting. In addressing them, the court participants debated in court over the speakers’ right to speak in a language of theirchoosing and the mandate for accurate and full interpretation to ensure the
39
40
41

42

IMTFE Charter, see above note 1.
IMT Transcripts, p. 6746, see above note 28.
Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes
Trial, William Morrow and Company, New York, 1987, pp. 215-16.
IMT Transcripts, pp. 7087-88, see above note 28.

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial

defendants’ right to a fair trial. Also, the difficulty of interpreting between
English and Japanese was explained and recognized, and so were the interpreters’ cognitive limitations such as their inability to interpret a long
passage in the consecutive mode and to properly interpret a speech readfrom a prepared text without access to the text or its translation in advance.
Ultimately, the tribunal arrived at workable procedural solutions
through debates and negotiations among the court participants over the
first year of the trial:
1. Speakers were to break down their remarks into short segments;
2. The interpreter was to deliver a full interpretation, not a summarization; and3. The translation was to be provided to the interpreter beforehand
when the speaker reads from a document.
Most of these conventions are now taken for granted in modern-day
international and national courts, but they had to be learned by the court
participants through trial and error and through negotiations between theinterpreters and the users of their services at the Tokyo Trial. It was indeed a process of educating the users of interpreting services.
7.4. Tokyo, Nuremberg and Beyond
7.4.1. Connection to Nuremberg?
The interpreting at the Nuremberg Trial is a monumental event in the history of interpreting because it was the first time that simultaneous interpreting was continuously used for an extended time. The interpreters’ skilful handling of the complex interpreting arrangement between four languages (English, French, German and Russian) using novel equipment
was a feat in the evolution of conference interpreting as a profession andled to the expansion of training programs for simultaneous interpreters inhigher education in Europe and North America. Nuremberg proved thatsimultaneous interpreting was feasible and efficient, saving an enormous
amount of time in a multilingual event. Because of this success, Colonel
Léon Dostert (a French-born US military officer and interpreter), who was
responsible for setting up the simultaneous interpreting system and forrecruiting and training interpreters at Nuremberg, was asked to introduce
simultaneous interpreting to the United Nations (‘UN’). Some of the interpreters at Nuremberg also went to New York to join Dostert at the UN.
Simultaneous interpreting is now widespread and the predominant mode
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The Tokyo Tribunal: Perspectives on Law, History and Memoryof interpreting at the UN as well as other international organizations,courts and conferences.
In contrast, consecutive interpreting was used at Tokyo since noneof the linguists had been exposed to interpreter training and simultaneousinterpreting between Japanese and English was deemed impossible at thattime due to the differences in sentence structure. While the interpreters at
Nuremberg were celebrated as pioneers of simultaneous interpreting who
played a significant role in the historic event,43 Japanese interpreters at
Tokyo were invisible for a very long time.44 None of the interpreters pursued interpreting careers after the trial. As discussed earlier, they seem tohave preferred not to attract attention, presumably because of the social
stigma attached to having facilitated a trial that was often criticized as victor’s justice and that convicted (and executed in some cases) former Japanese leaders. Incidentally, while the interpreter team at Nuremberg consisted of both men and women, the interpreters, monitors and language
arbiter at Tokyo were all men.45
As for interpreting procedures, there were no impromptu dealings in
the courtroom at Nuremberg. Since simultaneous interpreting between
four languages was continuously taking place, the tribunal could not haveafforded much time to discuss language issues during the proceedings – itwould have been such a disruption to the fine-tuned, complex workings ofthe interpreting system. Dostert and his team conducted strict screening
and exams with candidates from the United States and Europe to select a
handful of highly competent interpreters.46 They participated in one to twomonths of training for simultaneous interpreting, which included practicein simulated courtroom proceedings. Compared to Tokyo, Nuremberg was
far more prepared for the challenge of mediating a high-profile multilingual trial. At Tokyo, there was no Dostert who could effectively lead and
43

44

45

46

See, for instance, AIIC, Interpreters: A Historical Perspective (a documentary film), 1996;
and Jesús Baigorri-Jalón, From Paris to Nuremberg: The Birth of Conference Interpreting,John Benjamins, Amsterdam, 2014.
There had been some sporadic references in magazines to Japanese interpreters at the Tokyo Trial, but it was Tomie Watanabe’s master’s thesis (1998) that first addressed them inan academic forum, see above note 17.
There were Japanese female translators behind the scene, but no woman worked as a linguist in the courtroom, except a Russian female interpreter in the Soviet interpreter team.
The Soviet had a standalone arrangement for its judge who understood neither English nor
Japanese: Takeda, 2010, p. 37, see above note 12.
Gaiba, 1998, pp. 40-50, see above note 2.

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oversee the interpreting system. The equipment dedicated to interpreting
was not ready at the beginning, and the interpreters received no training
beyond basic information on how the court worked before they started
working in court. There seems to have been no sharing of information oninterpreting between Tokyo and Nuremberg except for the abovementioned inquiry from Tokyo in August 1946.
There were monitors who checked interpreters’ performance at both
Nuremberg and Tokyo. Those at Nuremberg, however, were mostly
checking if the technical aspect of the interpreting system was runningsmoothly. Presumably, there was no concern about the impartiality of interpreters since none of them were associated with the accused or the Nazis. Error corrections and style adjustments were made on the transcripts
by the interpreters themselves after a given trial session, using the verbatim records of the source speech and interpretations.47 In comparison, themonitors at Tokyo jumped in, if necessary, to interject corrections of interpreting errors during the proceedings. In addition to the nisei monitors,
the Caucasian US military officer, as the language arbiter, contributed tothe appearance of the Allied military being in charge of the tribunal’s language section and functioned as a deterrent against possible bad faith on
the part of the Japanese interpreters and the nisei monitors. Considering
these differences in the circumstances between Tokyo and Nuremberg, it
can be concluded that there was virtually nothing Tokyo could learn from
Nuremberg for practical application in the interpreting arrangements andprocedures.
7.4.2. Relevance to Present-Day International Criminal Justice
The interpreting at Nuremberg has exerted a lasting impact on the widespread use of simultaneous interpreting and the development of professional training in simultaneous interpreting. The interpreting at Tokyo, on
the other hand, was a one-off event that had no immediate bearing on theprofession of interpreting or the court interpreting system in Japan or beyond.
There is one feature of interpreting at Tokyo, however, that could be
relevant to present-day international criminal justice: the fact that Japa47

Ibid., p. 71, pp. 97-98; Peter Less, “Speaking with a History Maker: Interpreters at the
Nuremberg Trials”, The ATA Conference in Seattle, November 2005; and Peter Less, Personal communication with the present author at the ATA Conference in New Orleans, November 2006.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

nese citizens interpreted the proceedings against their former superiors
and leaders. This circumstance raised issues of the neutrality and trustworthiness of interpreters, as well as possible psychological burdens onthem. The same type of situation can present itself today when languagesof lesser diffusion, as Japanese was at that time, are involved in international criminal justice.
The ICTY is one such example. There, simultaneous interpreting
between English, French and BCS (Bosnian, Croatian and Serbian) was
provided throughout the court proceedings.48 Most of the interpreters werefrom the former Yugoslavia since Bosnian, Croatian and Serbian were notwidely taught or spoken outside the former Yugoslavia. However, there
was no explicit concern over their impartiality. Most interpreters were
professionally trained conference interpreters bound by a code of ethics
guaranteeing professional integrity, dignity, impartiality and accuracy. 49
Also, they worked in an environment in which their interpretation was
broadcast later on the ICTY website with a 30-minute delay and the transcripts were available to the public, leaving little opportunity for transgressions to go undetected. The practice at the ICTY indicates that enforcing the code of ethics and the transparency of the institutional procedures
can be an effective way for the users of interpreting services to be assuredof interpreter impartiality.
As for error correction, the real-time transcription display50 in theinterpreters’ booth made it possible for the interpreters at the ICTY to
identify their own errors and correct them in real time. There was also amechanism through which the defence could request that the Conferenceand Language Service Section verify the accuracy of a given translationand interpretation. If some disagreement remained, the judge would makea ruling. It should be noted that there are similarities between this systemand the Language Arbitration Board from the Tokyo Trial.
At the institutional level, there was a well-developed, professional
interpreting system with highly qualified interpreters in place at the ICTY.
Some interpreters, though, faced emotional strain stemming from having
48
49

50

In addition, Albanian or Macedonian was used in some cases.
United Nations, The Code of Ethics for Interpreters and Translators Employed by the International Criminal Tribunal for the Former Yugoslavia, UN Doc. IT/144, 8 March 1999
(https://www.legal-tools.org/doc/xix9r7/).
It applied only for interpretation into English.

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7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial

to interpret testimonies concerning horrific crimes their former politicaland military leaders had committed. 51 There were counselling services
available for those interpreters and other staff who worked closely withthe victims and perpetrators to prevent secondary post-traumatic stress.
Interpreters from the former Yugoslavia were also concerned about political backlash from supporters of the defendants. During the trial of a prominent politician, there was a newspaper report on the trial with a photo of
the defendant in front of an interpreter in the booth. Fearing that the interpreter’s family could be threatened by his supporters, the tribunal decided
to protect interpreters by installing a one-way mirror for the booth. 52
Whether or not the interpreters were associated with the defendants in any
way, the ICTY developed procedures and measures to protect the welfare
and safety of interpreters, which presumably contributed to their ability tofulfil their duties effectively.
7.5. Conclusion
Drawing on archival documents of the US military and the Japanese government, the records of the relevant trials, and publications and interviewsof court participants at those trials, the present chapter has revealed thetrial-and-error nature of establishing the interpreting system and procedures at the Tokyo Trial. First, it argued that the IMTFE devised theunique three-tier interpreting system with Japanese nationals as court interpreters and the error checking mechanism of monitors and language
arbiter based on the lessons from the ad hoc handling of interpreting andits negative impact on the proceedings at Class B/C trials in Manila andYokohama. Second, unfamiliar with the workings of interpreting and inattentive to the language needs of different participants, the IMTFE faced aseries of unexpected problems with interpreting and had to resolve them
extemporaneously over the course of proceedings. Through disruptions,debates and negotiations, it took almost a year for the court to settle with aset of workable procedural rules for interpreting.
The tribunal’s cavalier attitude toward the needs and requirementsof a multilingual courtroom and improvisational approach to addressing
the interpreting problems at Tokyo contrast starkly with Nuremberg,
where careful preparations led to the successful operation of a much more
51

52

Humphrey Tonkin and Maria Esposito Frank (eds.), The Translator as Mediator of Cultures, John Benjamins, Amsterdam, 2010.
Interview with ICTY interpreters by the author in August 2012.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

complex interpreting system. It should be noted, however, that a fundamental difference between the two trials in this context was the availability of competent interpreters within the Allied nations. Due to the lack ofsuch interpreters in Japanese, the IMTFE had to depend on citizens of thedefeated nation. Further, in order to monitor the performance of interpreters, the tribunal had to resort to nisei who were once deemed enemy aliensby the US government during the war. Accordingly, attention should also
be paid to the power and racial dynamics among the members of the interpreting system at the Tokyo Trial. Thus, inquiry into how the IMTFE
devised its interpreting system contributes to comparative studies of Tokyo and Nuremberg, as well as discussions of trial preparations and power
dynamics within the tribunal.
Today, procedural rules for interpreting are well in place in the international criminal justice system. However, it does not mean that it isfree of language-related challenges. For instance, Ellen Elias-Bursać argues that the ICTY was such a protracted affair that the defence eventually developed strategies to exploit the interpreting and translation systemby raising a number of terminological issues.53 Her analysis illustrates thatinterpreting and translation is an integral part of international criminal justice, and that translation of politically sensitive terms and legal terms between completely different judicial systems54 probably will never cease to
be a challenge in multilingual courtrooms. Whether on the international or
national level, it should be assumed that errors in interpreting and translation can happen, and terminological issues are inherent in multilingual
court proceedings. Establishing mechanisms to address such language issues is essential to the smooth operation of proceedings. Multilingual
courtrooms of the present would benefit from studying past successes andfailures to inform their training of court interpreters and the users of theirservices.

53
54

Elias-Bursać, 2015, pp. 197-240, see above note 3.
See Gaiba, 1998, pp. 104-09, see above note 2, and Takeda, 2010, pp. 46-49, and 99-111,
see above note 12, for terminological issues in translation and interpreting at the Nuremberg Trial and the Tokyo Trial, respectively.

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PART III:DYNAMICS AND DIMENSIONS OF THE TRIAL

8______
Individual Responsibility at the Tokyo Trial
Yuma Totani*
8.1. Introduction
The year 2018 marked the passage of seven decades since the promulgation of the Judgment by the International Military Tribunal for the Far
East (‘IMTFE’). What sorts of knowledge have been generated thus far
concerning the trial of major Japanese war criminals at the IMTFE, or the‘Tokyo Trial’ as it is commonly known? How has the ever-expanding
body of scholarship on the trial as well as controversies it generates cometo inform our understanding of the Tokyo Trial and its legacies?
The two decades following the establishment of the International
Criminal Tribunal for the former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’) saw a surge in the studiesof the Tokyo Trial, which, in turn, energized this field of study.1 The assessment of the Tokyo Trial in the international legal community underwent a marked change in the same decades. Having been overshadowed*

1

Yuma Totani is Professor of Modern Japanese History at the University of Hawaii andVisiting Fellow at the Hoover Institution, Stanford University. She specializes in the studies of post-World War II Allied war crimes trials in the Asia-Pacific region and especially
the Tokyo Trial.
Representative publications in recent decades include David Cohen, “Beyond Nuremberg:
Individual Responsibility for War Crimes”, in Carla Hesse and Robert Post (eds.), Human
Rights in Political Transitions: Gettysburg to Bosnia, Zone Books, New York, 1999, pp.
53-92; Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal, Oxford University Press, Oxford, 2008a, and its companion source book, Documents on the Tokyo International Military Tribunal: Charter, Indictment, and Judgments,
Oxford University Press, Oxford, 2008b; Yuma Totani, The Tokyo War Crimes Trial: The
Pursuit of Justice in the Wake of World War II, Harvard University Asia Center, Cambridge, 2008; Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg legacy, Routledge, London and New York, 2008; Yuki
Tanaka, Tim McCormack, and Gerry Simpson (eds.), Beyond Victor’s Justice?: The Tokyo
War Crimes Trial Revisited, Brill, Leiden, 2010; and Kerstin von Lingen (ed.), Transcultural Justice at the Tokyo Tribunal: The Allied Struggle for Justice, 1946-48, Brill, Leiden,
2018. I list here a representative range of recent English-language publications alone, since
I lack proficiency in other languages except Japanese. For an overview of Japaneselanguage publications on the Tokyo Trial, see Totani, 2008, pp. 190-262.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

by the Nuremberg Trial for much of the post-war period, the Tokyo Trial
has come to gain recognition as a foundational event in the history of international criminal justice and accountability. The assessment of the Tokyo Trial has been transformed in recent decades, arguably because of thegrowing global importance of international criminal justice mechanisms
to end impunity for genocide, war crimes and crimes against humanity, or
serious human rights violations that may amount to core international
crimes. Nuremberg and Tokyo are particularly credited for providing historical precedents for enforcing the principle of individual responsibility
for international crimes – precedents upon which, five decades following
Nuremberg and Tokyo, the ICTY and the ICTR were established. Which
were the precedents on individual responsibility that the Tokyo Trial established?
It is a matter of general knowledge that the accused at the Tokyo
Trial were convicted of conspiracy to commit crimes against peace. Thisknowledge is based on the majority’s findings that a common plan or conspiracy to carry out aggressive war, with the goal of achieving Japan’s
economic, political and military domination in Asia and the Pacific, existed between 1928 and 1945; and that, by the application of criminal conspiracy as a theory of liability, most of the accused were guilty of crimes
against peace.2 What remains under-explored is the equally important factthat the prosecution’s case did not solely rely on the doctrine of criminal
conspiracy but also applied other recognized criminal law theories of individual responsibility, and that there were charges other than crimes
against peace. Furthermore, the majority in the final judgment made findings on those counts where the doctrine of criminal conspiracy did not
apply, including counts on war crimes. Notwithstanding a marked increase in research on the Tokyo Trial today, however, there is yet to
emerge a shared understanding in the scholarly community as to what
theories of individual responsibility were applied at Tokyo, or what theunderlying evidence by which the individual accused received convictions
or acquittals on various charges was.
The purpose of the present chapter is to provide a brief sketch of theprosecution’s case on individual responsibility, evidentiary grounds, and2

Boister and Cryer, 2008b, chapters 9 and 10 of the Majority Judgment, see above note 1.

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8. Individual Responsibility at the Tokyo Trial

the defence responses, so that this chapter can correct the existing scholarship concerning the scope of the prosecutorial effort at the Tokyo Trial.3
8.2. The Accused
It is instructive to first revisit the principle of individual responsibility as
articulated in the IMTFE Charter (promulgated on 19 January 1946), andto review the profiles of those individuals whom the prosecution chose to
put on trial at Tokyo. The IMTFE Charter followed the model provided in
the Charter of the International Military Tribunal (‘IMT’) (as annexed to
the London Agreement, 9 August 1945) by identifying three types of offences as falling within the jurisdiction of the Tokyo Tribunal: crimes
against peace, war crimes, and crimes against humanity. That said, the
IMTFE Charter was deliberately phrased to emphasize the relative importance of crimes against peace among the three.
Article 5. Jurisdiction Over Persons and Offences.
The Tribunal shall have the power to try and punish Far
Eastern war criminals who as individuals or as members oforganizations are charged with offenses which include
Crimes against Peace.4

As for the applicable principle of responsibility, the IMTFE Charter
contained one article that combined two articles in the IMT Charter without substantially altering their meaning. The relevant article thus read:
Article 6. Responsibility of Accused.
Neither the official position, at any time, of an accused, nor
the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to freesuch accused from responsibility for any crime with which heis charged, but such circumstances may be considered in
mitigation of punishment if the Tribunal determines that justice so requires.53

4

5

The present chapter draws upon David Cohen and Yuma Totani, The Tokyo War Crimes
Tribunal: Law, History, and Jurisprudence, Cambridge University Press, Cambridge,
2018a; and David Cohen and Yuma Totani, Tōkyō saiban “shinwa” no kaitai: Paru,
Rērinku, Webu san-hanji no sōkoku [The Deconstruction of the Tokyo Trial ‘Myths’: Battles among Three Justices, Pal, Röling, and Webb], Chikuma Shobō, Tokyo, 2018b.
The IMTFE Charter is reproduced, inter alia, in Boister and Cryer, 2008b, p. 8, see above
note 1 (emphasis added).
Ibid. The IMT Charter contained the following articles: “Article 7. The official position of
defendants, whether as Heads of State or responsible officials in Government Departments,

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By the stipulation above, the IMTFE Charter reaffirmed the principle in the IMT Charter that those charged with responsibility for international offences are not immune from criminal prosecution, regardless of
their official positions. The same principle is articulated in the constitutive
statutes of present-day international criminal tribunals such as, for instance, the Rome Statute of the International Criminal Court.6
In light of these stipulations in the IMTFE Charter, the prosecution
selected 28 Japanese out of some one hundred persons whom the Allied
authorities identified as major war criminals for international prosecution.7 The number of defendants was subsequently reduced to 25 due totwo deaths and one case of mental unfitness. In the initial group of 28,
most were formerly high-ranking officials of the Imperial Government ofJapan, having held key positions in the Cabinet, the Privy Council, theMinistry of the Imperial Household, the Ministry of Foreign Affairs, theMinistry of the Army, the Ministry of the Navy, the Ministry of Finance,and other government agencies, as well as the Japanese-controlled Government of Manchukuo (1932-45) in northeast China.
The accused included the following individuals:
1. Naoki Hoshino was a career bureaucrat in the Ministry of Finance,
who served as Chief of the General Affairs Bureau in the Government of Manchukuo from 1936 to 1939 and Chief Secretary and6

7

shall not be considered as freeing them from responsibility for mitigating punishment”;
and “Article 8. The fact that the Defendant acted pursuant to order of his Government or ofa superior shall not free him from responsibility, but may be considered in mitigation ofpunishment if the Tribunal determines that justice so requires”. The IMT Charter is reproduced in Leon Friedman (ed.), The Law of War: A Documentary History, Random House,
New York, 1972, vol. 1, p. 887 (emphasis added).
The relevant provision in the Rome Statute reads as follows:
Article 27. This Statute shall apply equally to all persons without any distinction basedon official capacity. In particular, official capacity as a Head of State or Government, amember of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute,nor shall it, in and of itself, constitute a ground for reduction of sentence.
Emphasis added (http://www.legal-tools.org/doc/7b9af9/).
For more information on how the prosecution selected defendants at Tokyo, see Kentarō
Awaya’s Tōkyō saiban ron [A Treatise on the Tokyo Trial], Ōtsuki Shoten, Tokyo, 1989,
and Tōkyō saiban e no michi [The road to the Tokyo Trial], vols. 1-2, Kōdansha, Tokyo,
2006. A comprehensive list of those individuals who were named as major war crimes
suspects can be found in Tōkyō Saiban Handobukku Henshū Iinkai (ed.), Tōkyō saiban
handobukku [The Tokyo Trial Handbook], Aoki Shoten, Tokyo, 1989, pp. 200-03.

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8. Individual Responsibility at the Tokyo Trial

Minister of State without Portfolio of the Imperial Government ofJapan from 1941 to 1944.
2. Okinori Kaya was also a high official in the Ministry of Finance,
who was appointed as Finance Minister on the eve of the Pearl Harbor attack and continued to serve in the same capacity until mid1944.
3. Kōki Hirota was a career diplomat who served as Foreign Ministerintermittently from 1933 to 1938, Prime Minister from 1936 to
1937, and jūshin (‘senior statesman’; ex-premier) from 1938 to1945 with responsibility to render advice to Emperor Hirohito.
4. Baron Kiichirō Hiranuma was a longstanding member of the Privy
Council, serving as its Vice-President from 1930 to 1936 and President from 1936 to 1939. He also served briefly as Prime Minister in
1939, and provided advice to the Emperor in his capacity as jūshin
thereafter.
5. Marquis Kōichi Kido made his career as an official in the Ministryof the Imperial Household in most part, but he also held top positions in the executive branch of the government, such as Education
Minister in 1937, Welfare Minister in 1938, and Home Minister in
1939. He became the Lord Keeper of the Privy Seal and acted as apersonal confidant of Emperor Hirohito from 1940 to 1945.8
The group of defendants at the Tokyo Trial included a fair numberof former high-ranking army and navy officers as well. Nevertheless, thepositions they held were not limited to those in military command organs,but also those in the government administration. For instance, General
Seishirō Itagaki may be remembered to this day as a staff officer of theJapanese garrisoned army in northeast China (also known as the ‘Kwantung Army’) and a co-plotter of the Manchurian Incident of September
1931. Yet, the charges against him at the Tokyo Trial were not limited tomatters relating to the Manchurian Incident, but also included his conduct
as Army Minister from 1938 to 1939. Similarly, those who are familiar
with the history of the Asia-Pacific War may recognize Lieutenant General Akira Mutō as former Adjutant Chief of Staff of General Iwane Matsui’s Central China Area Army at the time of the Nanjing Massacre between 1937 and 1938, and Chief of Staff of General Tomoyuki Yamashi8

Key positions held by individual accused are indicated in the indictment. Boister and Cryer,
2008b, pp. 63-69, see above note 1.

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ta’s 14th Area Army in the Philippines between 1944 and 1945. However,the charges against Mutō at the Tokyo Trial were not limited to his military services during the Battle of Nanjing or the Battle of the Philippines.
They also included his role in the management of prisoner-of-war affairs
while serving in the central government as Chief of the Military Affairs
Bureau of the Ministry of the Army from 1938 to 1942. Above all, thecharges against General Hideki Tōjō at the Tokyo Trial had less to do withhis activities in army forces in the 1930s than his conduct during his tenure as Prime Minister and concurrently Army Minister between 1941 and
1944. From these examples, it appears that the prosecution attached relative importance to pursuing accountability of those individuals who held
top positions in the wartime Japanese government.
It is worth noting that the prosecution stopped short of charging
Emperor Hirohito, even though he was the highest-ranking political andmilitary leader of Japan throughout the war. Hirohito held the position of“the head of the Empire, combining in Himself the rights of sovereignty”
since before the start of the Manchurian Incident until well after the endof World War II. He concurrently assumed the “supreme command of the
Army and Navy”, in accordance with the Constitution of the Empire ofJapan (‘Meiji Constitution’).9 The prosecution nevertheless excluded himfrom the group of accused because of an Allied joint policy decision,
adopted on 3 April 1946, to disallow the Supreme Commander for the Allied Powers (‘SCAP’) from taking any action against the Emperor as awar criminal without further authorization. This policy decision remained
binding upon the Supreme Commander for the duration of the Allied occupation of Japan (1945–52).10 The withholding of prosecutorial action
against Emperor Hirohito sent contradictory messages to the Japanesepublic concerning the Allied Powers’ priorities on justice and accountabil-

910

The text of the Constitution of the Empire of Japan (1889-1947) is available on the website of the National Diet Library. The term ‘Meiji’ refers to the reign title of the firstmodern emperor of Japan, Mutsuhito, covering the period between 1868 and 1912.
Two individuals served as the Supreme Commander for the Allied Powers in occupied
Japan in succession: General Douglas MacArthur (1945-51) and General Matthew Ridgway (1951-52).

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ity. It remains a matter of controversy as to whether the Allied Powers
should have put Emperor Hirohito on trial.11
8.3. The System of Japanese Government
The Bill of Indictment at the Tokyo Trial is a closely typed 46-page document that contains a preamble, concise statements of the charges in 55
separate counts against the 28 defendants, and five appendices.12 An analysis of the indictment shows that, broadly speaking, two different theories
of liability were invoked to support the various charges against the Japanese accused. One was the doctrine of criminal conspiracy, which both the
IMT and IMTFE Charters recognized as an applicable theory of liability
by stipulating in part that “leaders, organizers, instigators and accomplices
participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts
performed by any person in execution of such plan”.13 The doctrine of
criminal conspiracy applied to just nine counts at Tokyo, namely, fivecounts of crimes against peace (Counts 1 to 5), three on murder (Counts
37, 38 and 43), and one on conventional war crimes and crimes against
humanity (Count 53). For the remainder of the counts, the accused werecharged not with conspiracy, but with substantive offences of planning,
preparation, initiation and/or waging of aggressive war (Counts 6 to 36),
commission of murder (Counts 39 to 42, and 44 to 52), and ordering, authorization or criminal omission relative to war crimes and crimes against
humanity committed by members of the Japanese armed forces (Counts
54 and 55).
With respect to these latter non-conspiracy counts, the prosecution
submitted a “Statement of Individual Responsibility for Crimes Set Out in
the Indictment” (in Appendix E), articulating its basic position concerning
the application of the principle of individual responsibility. This part ofthe indictment is important, as it illuminates the prosecution’s general
strategy of linking each of the accused in their disparate roles to a wide
11

12

13

Further details regarding the Allied decision not to prosecute Emperor Hirohito and its
repercussions in post-war Japan are provided in Totani, 2008, pp. 43-62, 200-05, 213-17,
246-59, see above note 1; and Cohen and Totani, 2018a, pp. 32-44, see above note 3.
The digital copy of the indictment is available on the web site of Harry S. Truman Presidential Library and Museum. A reproduction of the indictment is also included in Boisterand Cryer, 2008b, pp. 16-69, see above note 1.
This phrase appears in Article 5 of the IMTFE Charter: Boister and Cryer, 2008b, p. 8, seeabove note 1.

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range of crimes alleged in the indictment. The relevant passages in the
appendix read as follows:
It is charged against each of the Defendants that he used thepower and prestige of the position which he held and his
personal influence in such a manner that he promoted andcarried out the offences set out in each Count of this Indictment in which his name appears.
It is charged against each of the Defendants that during
the periods hereinafter set out against his name he was one ofthose responsible for all the acts and omissions of the various Governments of which he was member, and of the various civil, military [army] or naval organizations in which heheld a position of authority.14

Through the statement in the first paragraph above, the prosecution
set out the following elements required for proving individual responsibility: (1) that the accused held positions of authority; (2) that the accusedused the power and prestige derived from such positions, or personal influence; and (3) that the accused enabled the commission of offences as
charged in the indictment, by exercising such power, prestige and/or personal influence. The statement in the second paragraph above, meanwhile,
articulates a concept of individual responsibility that, somewhat paradoxically, is grounded on the notion of collective responsibility. Specifically, it
sets out that an accused in a position of authority is liable for “all” criminal acts committed under the administrative or policy purview of the respective governmental agency or entity of which the accused was a member.
In advancing these theories of responsibility, it became incumbent
upon the Tokyo prosecution to explain what these “positions of authority”
were. To this end, at the start of the Tokyo Trial, the prosecution offered aconcise, two-part account on the structure and workings of the Imperial
Government of Japan since the overthrow of the shogunal government byimperial loyalists in 1867 (known as the ‘Meiji Restoration’) through theend of World War II, with special regard to the evolution of the Japanese
government system during the years covered by the indictment. Much of
the prosecution’s presentation during the initial phase was focused on
enumerating government organs, outlining their formal functions, andcross-referencing them with provisions contained in corresponding impe14

Ibid., pp. 62-63.

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8. Individual Responsibility at the Tokyo Trial

rial ordinances and laws as well as the Meiji Constitution. Additional evidence was produced during the prosecution’s subsequent phases and during the defence’s presentation of evidence.
When seen as a whole, the prosecution’s case brought to light threeessential layers in the organization of Japanese government, namely:
1. the formal structure of the government as defined by the Japaneselaws, which comprised the institution of the Emperor as the sovereign power, and a wide range of imperial advisory organs such as
the Ministry of the Imperial Household, the Imperial Diet, Ministersof State, and the Privy Council;
2. informal government institutions, which were not explicitly recognized by the Japanese laws but exercised tremendous influence overthe formal structure of the government, such as genrō (‘elder statemen’; imperial advisers for life), jūshin (as mentioned), the Boardof Marshals and Fleet Admirals, and the Chief Aide-de-Camp to theEmperor; and3. a superstructure of the government, or “liaison bodies” in the parlance of the Tokyo prosecution, which were established the 1930s
and the 1940s to co-ordinate the views of administrative and military branches of the government concerning war policies. Liaison
bodies are shown to have made policy decisions over and above theformal structure of the government, and functioned as the de facto
highest-level policymaking organs throughout the war years. They
were extra-constitutional bodies nonetheless, since their constitutional functions, authority, or duties remained largely undefined by
the laws of Japan.
The prosecution’s case further demonstrated that these liaison bodies took various forms during the war, including the following main ones:• the Four Minister Conference (consisting of the Prime Minister, theForeign Minister, the Army Minister, and the Navy Minister);• the Five Minister Conference (consisting of the members of theFour Minister Conference and the Finance Minister);• the Liaison Conference between the Government and the Imperial
Headquarters (consisting of the principal members of the Cabinet,
those of the Army and Navy General Staff Offices, and their subordinates);
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The Tokyo Tribunal: Perspectives on Law, History and Memory•

the Imperial Conference (consisting of the members of the Liaison
Conference and the Emperor);• the Conference for the Supreme Direction of the War (consisting
practically of the same members as those in the Liaison Conference); and• the Imperial Headquarters Conference (consisting of members of
the Army and Navy General Staff Offices and the Prime Minister).
As the composition of each of these liaison bodies indicates, those
who participated in the meetings of liaison bodies were themselves thecore members of the formal structure of the Japanese government, concurrently holding positions in the Cabinet, the Privy Council, and/or the
Imperial Headquarters.15 In this manner, the prosecution showed that theJapanese government evolved over time to form a complex structure and,by extension, a highly complicated system for the distribution of government power, authority and prestige as well as personal influence.
How did the defence respond to the prosecution’s case on the system of government in wartime Japan? This question is of vital importancebecause, should the defence fail to introduce sufficient evidence to cast
doubt on the prosecution’s case, the judges were in principle entitled totake the facts at issue as proved by the prosecution. Quite remarkably, thetranscripts of the court proceedings show that not only did the defence failto challenge the prosecution’s case but they also confirmed its general factual accuracy. The defence agreed on: (1) the inviolability of the principleof imperial sovereignty; (2) the indispensability of the formal structure of
the government for the Emperor to exercise his sovereign powers; (3) theindispensability of informal advisory organs to the functioning of the formal structure of government; and (4) the significance of the emergence ofliaison bodies during the war years, forming a superstructure for policymaking over the formal structure of the government. It can be said thatthese points of agreement provided the judges with critical factual
grounds for determining the power, authority and prestige of positions

15

A full discussion of the structure and workings of the Japanese Government as presented
by the prosecution and the defence can be found in Cohen and Totani, 2018a, chapter 3,
see above note 3.

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8. Individual Responsibility at the Tokyo Trial

held by individual accused and, by extension, the criteria with which to
make findings on their liability.16
8.4. Individual Responsibility for War Crimes
As mentioned above, the indictment at the Tokyo Trial contained two
counts that charged the individual accused with substantive offences of
war crimes (Counts 54 and 55).17 These counts deserve further scrutiny
here, since they provide additional details concerning the prosecution’s
strategy.
The two counts articulated two contrasting theories of liability.
Count 54 charged the accused with the commission of war crimes, alleging that the accused “ordered, authorized and permitted” the various Japanese military organizations, authorities of prisoner-of-war camps and civilian internment camps, military and civilian police forces, and so on, inJapan and occupied territories, to commit war crimes.18 Count 55 charged
the accused with culpable failure to stop the occurrence of war crimes,that they:
being by virtue of their respective offices responsible for securing the observance of the said Conventions and assurances and the Laws and Customs of War […] deliberately andrecklessly disregarded their legal duty to take adequate steps
to secure the observance and prevent breaches thereof, andthereby violated the laws of war.19

The prosecution’s choice of the phrase “their respective offices” is programmatic, as it set the stage for the prosecution to charge not only Japanese military commanders, but also Japanese government officials withresponsibility for war crimes.
With regard to Count 55, the prosecution provided, in Appendix D
to the indictment, a list of international-law instruments that it considered
relevant to establishing the accountability of government officials for war
16

17

18
19

It falls outside the scope of the present chapter to analyse the judges’ handling of the prosecution and defence evidence concerning the system of Japanese government. A detailed
study of the matter is provided in ibid., Part II.
Counts 54 and 55 are classified in the indictment as “Conventional War Crimes andCrimes against Humanity”, but the actual case the prosecution made under these counts
was war crimes.
Boister and Cryer, 2008b, p. 32, see above note 1.
Ibid., p. 33 (emphasis added).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

crimes. The list included a provision in the 1907 Hague Convention No.
IV Concerning the Laws and Customs of War of 1907, which reads as follows:
Prisoners of War are in the power of the hostile Government,
but not of the individuals or corps who capture them.20

This article identifies a “hostile Government” as being primarily responsible for protecting prisoners of war, while the responsibility of military personnel or units that secure prisoners is shown to be secondary. A
provision to the same effect was also contained in the International Convention for the Amelioration of the Condition of the Wounded and Sick inArmies in the Field (signed in Geneva in 1929; commonly known as the‘Red Cross Convention’), which appears in Appendix D as follows:
Article 26. The Commanders-in-Chief of belligerent armies
shall arrange the details for carrying out the preceding articles, as well as for cases not provided for, in accordance with
the instructions of their respective Governments and in conformity with the general principles of the present Convention.21

It goes without saying that a ‘government’ is the one to sign and ratify international treaties and conventions, and that a ‘government’ necessarily depends upon individuals in positions of authority to fulfil its various obligations vis-à-vis the international community. The prosecution at
the Tokyo Trial apparently inferred from provisions in the Hague and Geneva Conventions such as the ones above that members of a government
therefore had the duty, as individuals, to ensure the government’s fulfilment of its obligations concerning the observance of the laws and customsof war.
In addition to international-law instruments above, Appendix D includes a list of “Particulars of Breaches” relating to war crimes. This list,
too, deserves close attention here, as it reveals another important facet ofthe prosecution’s strategy for establishing the guilt of those accused of
war crimes. The list contains a summary statement – in less than fourtypescript pages in the Bill of Indictment – of 15 categories of war crimes,
which the prosecution alleged to have been commonplace occurrence in
the Japanese conduct of war and military occupation, and for which the20
21

Ibid., p. 57 (Article 4, Section 1, Annex, emphasis added).
Ibid., p. 58 (emphasis added).

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8. Individual Responsibility at the Tokyo Trial

prosecution sought to hold the accused individuals accountable.22 What isnoteworthy about this list is that it contains no detailed description of any
specific episodes of war crimes; there is not even basic information suchas dates, locations, or numbers of victims. This stands in stark contrast
with the 7,900-word statement of offences contained in the IMT indictment, which provides detailed descriptions of individual episodes of war
crimes as well as relevant dates, locations, types of offence, numbers ofvictims, and various other statistical data and tables.23 Why did the prosecution at the Tokyo Trial prepare the statement of offences in such an abbreviated form instead of following the IMT model?
The answer lies in certain obstacles that the Tokyo prosecution
faced while looking for evidence on the war crimes. The prosecution at
the Nuremberg Trial could develop charges of atrocities against wartime
German government and military leaders relatively easily, by making useof documents that the Allied forces confiscated during the invasive opera22

23

The 15 categories of war crimes as listed in Appendix D are as follows:
1. Inhuman treatment […] prisoners of war and civilian internees were murdered,beaten, tortured and otherwise ill-treated, and female prisoners were raped bymembers of the Japanese forces […]2. Illegal employment of prisoners of war labor […]3. Refusal and failure to maintain prisoners of war […]4. Excessive and illegal punishment of prisoners of war.
5. Mistreatment of the sick and wounded, medical personnel and female nurses […]6. Humiliation of prisoners of war, and especially officers […]7. Refusal or failure to collect and transmit information regarding prisoners of war,and replies to enquiries on the subject […]8. Obstructions of the rights of the Protecting Powers, of Red Cross Societies, or
prisoners of war and of their representatives […]9. Employing poison [with a notation that the commission of this offence was confined to “the wars of Japan against the Republic of China”] […]10. Killing enemies who, having laid down their arms or no longer having means ofdefence, had surrendered at discretion […]11. Destruction of Enemy Property […]12. Failure to respect family honour and rights, individual life, private property and religious convictions and worship in occupied territories, and deportation and enslavement of the inhabitants thereof […]13. Killing survivors of ships sunk by naval actions and crews of captured ships […]14. Failure to respect military hospital ships […]15. Attacks, and especially attacks without due warning, upon neutral ships.
Boister and Cryer, 2008b, pp. 58-62, see above note 1.
For the IMT indictment, see Trial of the Major War Criminals before the International
Military Tribunal: Nuremberg, 14 November 1945 – 1 October 1946, Nuremberg, Germany, 1947-49, vol. 1, pp. 27-92 (http://www.legal-tools.org/doc/388b07/).

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The Tokyo Tribunal: Perspectives on Law, History and Memorytions following D-Day. The prosecution at Tokyo, by contrast, struggledwith a dearth of evidentiary materials because of co-ordinated cover-up
efforts by the Japanese government and military authorities, which burned
documents in their possession en masse during the two-week hiatus between the Japanese Government’s acceptance of Potsdam terms on 14
August 1945 and the surrender ceremony on 2 September 1945. The Tokyo prosecution ultimately secured a large amount of evidence on the war
crimes, but not soon enough to analyse and incorporate them into the Billof Indictment.24 Furthermore, it was predominantly ‘crime-base evidence’,that is, evidence documenting the various episodes of war crimes but –unlike in the IMT – fell short of affirmatively establishing their link to theaccused individuals.25 Given this, the prosecution at the Tokyo Trial apparently decided to focus on documenting the broad geographical distribution and recurrence of various categories of war crimes by using
crime-base evidence, so as to enable the judges to make inferences ofcriminal orders or authorizations by the accused as alleged in Count 54, or
culpable failures to stop the commission of war crimes as alleged in
Count 55.
Once in open court, the prosecution made the following statement
to clarify what it sought to achieve by presenting voluminous crime-baseevidence:
This similarity of treatment [of prisoners of war, civilian internees, and non-interned civilians] throughout the territories
occupied by the Japanese forces will, it is submitted, lead tothe conclusion that such mistreatment was the result not of
the independent acts of the individual Japanese Commanders

24

25

A fuller discussion on the Tokyo prosecution’s challenges in collecting evidence on war
crimes is provided in Cohen and Totani, 2018a, pp. 61-68, 204-08, see above note 3.
The prosecution did obtain a limited amount of ‘linkage evidence’, which showed affirmatively the connection of certain accused with specific episodes of war crimes. For instance,
the prosecution presented in evidence the record of pretrial interrogations, during which
former Army Minister, Tōjō admitted that he authorised the use of prisoners of war for theconstruction of the Burma-Siam Railway. He testified to the same effect during court
testimony as well. Moreover, the prosecution presented a large number of Allied Governments’ protests and inquiries regarding the Japanese treatment of Allied prisoners of war
and civilian internees, which helped document that Tōjō and other high-ranking membersof the Japanese Government were repeatedly put on inquiry notice about the crimes
committed by the Japanese servicemen.

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8. Individual Responsibility at the Tokyo Trialand soldiers, but of the general policy of the Japanese forces
and the Japanese government.26

In other words, the prosecution sought to demonstrate that the members ofJapanese armed forces mistreated protected individuals – prisoners of war,
civilian internees, and other civilian populations in occupied territories –in similar manners everywhere, and argued that such “similarity of treatment” must have resulted from Japan’s war “policy”.
How did the defence respond? The transcripts of the court proceedings reveal that, in seeming contradiction to its general insistence on the
primacy of the Act-of-State doctrine, the defence readily agreed to the applicability of the principle of individual responsibility insofar as the
charges of conventional war crimes were concerned. However, the defence took issue with the prosecution’s contention that international-law
instruments such as the Hague and Geneva Conventions provided a legal
basis to hold government officials accountable for war crimes. Instead, thedefence argued that the duty to ensure the observance of the laws and customs of war rested with military authorities – namely, members of the
Ministry of the Army, the Ministry of the Navy, and army and navy forcesat theatres of war – and not with members of non-military government
agencies in whom the Japanese laws vested no such legal duties.27
The defence further objected to the prosecution’s contention that thecrimes committed were perpetrated in a “similar” manner across all locations so as to allow the inference of an underlying policy. While not denying the broad geographical distribution and recurrence of war crimes perpetrated by Japanese forces, the defence argued that the allegation of similarly-patterned war crimes was “far too vague to be made the foundationof a highly criminal charge”, and also pointed out that the prosecution“does not even say that the ‘pattern’ was uniformly found everywhere”.
The prosecution “in some cases admitted it was not”.28 To challenge theprosecution’s contention that war crimes resulted from Japan’s war policy,
the defence went on to offer the following alternative explanation:
26

27

28

Transcripts of court proceedings at the Tokyo Trial are available in the ICC Legal Tools
Database. For the quoted passage, see transcripts of court proceedings, p. 12861 (https://www.legal-tools.org/doc/db944e/).
An in-depth analysis of the defence case is provided in Cohen and Totani, 2018a, chapter 6,
see above note 3.
Transcripts of court proceedings, p. 42261, see above note 26 (https://www.legal-tools.org/
doc/8642f3/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Even if the alleged atrocities or other contraventions assume
a similar singular pattern of acts it cannot justify such an assumption [of orders by higher authorities]. Such a pattern
may have been a sheer reflection of national or racial traits.
Crimes no less than masterpieces of art may express certain
characteristics reflected the mores of a race. Similarities in
the geographic, economic, or strategic state of affairs may inpart account for the “similar pattern” assumed.29

In this explanation, the defence suggested the “national or racial
traits” as an alternative explanation for the similarity in Japanese actions.
This argument appears to have made no impression on the judges, however, as the majority wrote in the final judgment thatthe evidence relating to atrocities and other Conventional
War Crimes presented before the Tribunal established that[…] torture, murder, rape and other cruelties of the most inhumane and barbarous character were freely practiced by theJapanese Army and Navy.

The majority further held that, given the scale and similarity of atrocities,“only one conclusion is possible – the atrocities were either secretly ordered or wilfully permitted by the Japanese Government or individual
members thereof and by the leaders of the armed forces”.30
8.5. The Case of Shigemitsu
The previous sections have explored the prosecution’s theories of government officials’ responsibility for international offences and the defence’s responses. Let us now take up a case study, so that it can be seen
how the contrasting interpretive positions on law and facts between thetwo parties played out in an actual case, namely the case of war crimes
against Mamoru Shigemitsu, formerly a member of the Japanese war cabinet and Foreign Minister.
Shigemitsu was one of three career diplomats to be put on trial at
Tokyo, two others being Shigenori Tōgō (Foreign Minister; 1941–42,
1945) and aforementioned Kōki Hirota (Foreign Minister; 1932–36,
1937–38). Shigemitsu had held various ambassadorial positions for muchof the 1930s and the early 1940s, after which he served as Foreign Minister in the Tōjō Cabinet, starting in April 1943. He continued to hold the
29
30

Ibid., p. 42203 (emphasis in the original).
Boister and Cryer, 2008b, p. 531, see above note 1.

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8. Individual Responsibility at the Tokyo Trial

same position after the replacement of the Tōjō Cabinet with the Koiso
Cabinet following the fall of Saipan in July 1944. He left the office inApril 1945 when the Koiso Cabinet fell, but he was reappointed to serve
as Foreign Minister in the Prince Higashikuni Cabinet (1945–46), which
was formed right after the end of the Pacific War.31
The prosecution’s case on war crimes against Shigemitsu was focused exclusively on the period between 1943 and 1945 when he served
as Foreign Minister. 32 The principal allegation was not that Shigemitsu
ordered or authorised the commission of war crimes, but rather that hefailed to fulfil his legal duty – in his capacity as a member of the Japanese
Government – to ensure Japan’s observance of the laws and customs ofwar. In support, the prosecution mainly documented the following facts:
1. that, over the course of two years of his service as Foreign Minister,
Shigemitsu received notice of numerous protests and inquiries fromthe Allied Governments via the Protecting Powers regarding theJapanese mistreatment of Allied nationals in Japanese custody;
2. that Shigemitsu passed on incoming foreign protests and inquiries
to authorities concerned within the Imperial Government of Japan;
3. that he prepared replies of his government based on information received from Japanese authorities concerned, and delivered them to
the Protecting Powers; and4. that the replies he prepared invariably denied the occurrence of thealleged war crimes.
In short, the prosecution showed that Foreign Minister Shigemitsu wasrepeatedly put on notice regarding the Japanese mistreatment of Allied
nationals in their custody, but he delivered no satisfactory replies to the
Allied protests.
In response, the defence did not deny the veracity of these facts, but
disputed their sufficiency as a basis on which to convict Shigemitsu. The
defence argued that as Foreign Minister, Shigemitsu did not have thepower to take charge of military matters in the first place, and that hesimply did what he had to do in his official capacity, namely, to pass on
31

32

Shigemitsu represented the Imperial Government of Japan at the signing of the Instrumentof Surrender on the deck of U.S.S. Missouri at Tokyo Bay on 2 September 1945.
A fuller analysis of the case against Shigemitsu can be found in Cohen and Totani, 2018a,
chapter 6, see above note 3.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

the information from foreign governments to Japanese authorities concerned, and to return the Japanese Government’s formal replies to the Protecting Powers. What is more, according to the defence, not only did Shigemitsu discharge his legal duty as Foreign Minister fully, but he also didso conscientiously. To this end, the defence presented an affidavit takenfrom Shigemitsu’s former subordinate official, Tadakatsu Suzuki, during
the sur-rebuttal phase in February 1948, and also called him to provide
oral evidence in the courtroom.33
As he took the witness stand, Suzuki emphasized that prisoner-ofwar affairs fell outside the jurisdiction of the Foreign Ministry, but that
Foreign Minister Shigemitsu took personal initiative to ascertain and ameliorate the actual conditions of prisoner-of-war internment. For instance,
Shigemitsu was said to have directed Suzuki to apply pressure on Suzuki’s counterparts in military ministries while Shigemitsu himself spoke
directly and repeatedly to the Army Minister. Furthermore, Shigemitsu
was said to have made his own subordinates use the Foreign Ministry’s
information network to verify facts.
Suzuki went on to point out that, on one occasion, Shigemitsu attempted to establish an “international laws and customs committee” as a
new cabinet organization, so that it could raise awareness among themembers of the Cabinet on legal issues concerning prisoner-of-war treatment. However, Shigemitsu gave up on this idea because, according to thewitness, both Shigemitsu and Suzuki believed that the Foreign Ministry
had no authority to deal with prisoner-of-war affairs. That said, Suzuki
informed the Tribunal that, in October 1944, Shigemitsu brought up theinformation of prisoner-of-war mistreatment at a meeting of the Conference for the Supreme Direction of the War (that is, as we have seen, a liaison body that came to function as the de facto highest-level policymaking
organ of the Japanese Government during the Koiso Cabinet). According
to Suzuki, this particular action vis-à-vis the liaison body brought about amodest improvement in prisoner-of-war treatment. When cross-examined
33

Suzuki served as chief of the “Bureau in Charge of Japanese Nationals in Enemy Nations”,
an office established within the Ministry of Foreign Affairs in mid-November 1942 to be
chiefly responsible for processing the incoming inquiries and protests on Japaneseviolations of laws and customs of war. Evidence regarding the functions of this Bureau canbe found in transcripts of court proceedings, pp. 38780-83. Suzuki had previously
appeared as a prosecution witness, the core part of whose testimony can be found in transcripts of court proceedings, pp. 12830-42, see above note 26.

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8. Individual Responsibility at the Tokyo Trialby the prosecution as to whether Shigemitsu took up the prisoner-of-war
affairs with the Cabinet (of which the accused was a member), however,Suzuki testified that “I do not think Foreign Minister SHIGEMITSU himself submitted anything of the kind to the Cabinet meetings”.34
What should one make of the testimony by Suzuki as above? Given
the nature of Shigemitsu’s wartime initiatives, should they constitute a
sufficient ground to exculpate him? The answer to these questions would
depend on the standard of responsibility that the Tribunal would impose.
If the Tribunal was to apply the standard that a concerned official was required to do everything within his or her scope of authority to address theissue, Suzuki’s testimony may carry considerable weight in favour of theaccused. If, on the other hand, the Tribunal should impose a standard that
requires the accused to have taken effective measures to end the mistreatment, Suzuki’s testimony may not be sufficient to absolve the accused.
Shigemitsu’s own assessment of the witness testimony was that it was unhelpful. In the diary that he kept during the Tokyo proceedings, Shigemitsu made extensive comments on Suzuki’s testimony and especially
his statement that Shigemitsu failed to take action vis-à-vis the Cabinet.
“Today, I scored a loss for the first time since the start of the court proceedings”,35 Shigemitsu wrote, indicating that this particular piece of evidence likely implicated him.
In the final judgment, a majority of the judges found Shigemitsu
guilty of war crimes under Count 55 holding that:
We do no injustice to SHIGEMITSU when we hold that thecircumstances, as he knew them, made him suspicious thatthe treatment of prisoners was not as it should have been. Indeed, a witness gave evidence for him to that effect. Thereupon he took no adequate steps to have the matter investigated, although he, as a member of the government, bore
overhead responsibility for the welfare of the prisoners. He
should have pressed the matter, if necessary, to the point of
resigning, in order to quit himself of a responsibility which
he suspected was not being discharged.36
34

35

36

Transcripts of court proceedings, p. 38911, see above note 26 (https://www.legal-tools.org/
doc/9dd820/).
Mamoru Shigemitsu, Sugamo nikki [Sugamo Diary], vol. 1, Bungeishunjū Shinsha, Tokyo
1953, p. 343.
Boister and Cryer, 2008b, p. 618, see above note 1 (emphasis added).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

This verdict indicates that the majority attached importance to testimony provided by “a witness” – Suzuki – according to whom the accused suspected that the prisoner-of-war treatment had not improved, but“took no adequate steps to have the matter investigated”. In short, thestandard of responsibility applied by the majority was that of taking effective measures to end the mistreatment.
8.6. Conclusion
In the brief sketch of the prosecution’s theories of responsibility, underlying evidence, and the defence responses, this chapter sought to shed lighton the scope of the prosecution’s case at the Tokyo Trial, especially where
it concerned war crimes. The prosecution sought to establish the accountability of Japanese government officials for war crimes and to that end, it
advanced a unique interpretation of international-law instruments and also
adopted a unique method of proof. Or to be exact, the case made at Tokyo
was not particularly unique or unusual. There were contemporaneous war
crimes trials where high-ranking government officials were convicted for
war crimes on similar legal grounds as the one for Shigemitsu, as exemplified in the case of Ernst von Weizsäcker at the Ministries Case at Nuremberg.37
Moreover, it was commonplace among prosecuting agencies at contemporaneous Allied war crimes trials in the Far East to make extensive
use of crime-base evidence to document the broad geographical distribution and recurrence of war crimes, and to enable the judges to make inferences of criminal orders, authorization, or knowledge against the accused.38 The significance of the Tokyo Trial, in this regard, is not that theprosecutorial effort was novel, but rather that it built on the experiences ofcontemporaneous Allied war crimes trials, thereby putting to further test
the emerging legal theories and strategies for establishing accountability.
The task for researchers of the Tokyo Trial going forward is to continue exploring the jurisprudential legacy of the Tokyo Trial in relation tocase-law literature arising from the past and the present, and to determine

37
38

See Totani, 2008, pp. 149-50, see above note 1.
See Yuma Totani, Justice in Asia and the Pacific Region, 1945-1952: Allied War Crimes
Prosecutions, Cambridge University Press, New York, 2015. The Tokyo Trial aside, theAllied authorities held more than 2,240 war crimes trials against some 5,700 accused at 51
separate locations across the former theatres of war in Asia and the Pacific.

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8. Individual Responsibility at the Tokyo Trial

its relevance to our continuing effort to strengthen the international criminal justice mechanisms in the twenty-first century.

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9______‘Conventional War Crimes’:
The International Military Tribunal for
the Far East and the Ill-Treatment of
Prisoners of War and Civilian Internees
Robert Cribb*
9.1. Introduction
The International Military Tribunal for the Far East (‘IMTFE’) was a vastand complex legal reckoning with Japan’s political and military leaders
for crimes committed before and during the Second World War. Although
the trial conducted by the IMTFE was a single legal enterprise, some of
the important insights emerge from examining specific themes within thetrial record. The prosecution of Japanese defendants for crimes against
prisoners of war and internees had a relatively subordinate role in the trial
process. The issues about prisoners of war raised by this prosecution,
however, effectively illustrate the court’s legal thinking on responsibility
for war crimes. This chapter examines the decision to prosecute Japaneseleaders for crimes against prisoners of war, the terms of the indictment,
the proceedings in court, the arguments presented by the defence, and theoutcomes of the trial.
On 26 July 1945, the leaders of the United Kingdom, (the Republicof) China and the United States, meeting in the German city of Potsdam,
issued a formal Proclamation Defining Terms for Japanese Surrender(‘Potsdam Declaration’). The Potsdam Declaration demanded Japan’s unconditional surrender, threatening “prompt and utter destruction” if the*Robert Cribb is Professor in the Department of Political and Social Change, Coral Bell
School of Asia-Pacific Affairs at the Australian National University. He is an historian ofmodern Indonesia, but with wider interests in other parts of Asia. He completed his B.A. at
the University of Queensland and his Ph.D. at the School of Oriental and African Studies
in London. He has held positions at Griffith University, the Netherlands Institute of Advanced Study, the University of Queensland and the Nordic Institute of Asian Studies. His
research focusses on national identity, mass violence, environmental politics, and historical
geography.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Japanese authorities failed to comply. It also outlined programmes which
the Allies proposed to implement if Japan did indeed surrender. Amongst
other things, the Allies expressed their determination in Article 10 to meteout “stern justice […] to all [Japanese] war criminals, including those whohave visited cruelties upon our prisoners”.1
In singling out cruelty against prisoners as a focus of the Allies’
post-war reckoning with Japan, the Potsdam Declaration reflected theprevalent perception in the West, that Japanese forces had treated Western
prisoners of war and internees under their control with extreme harshness
and brutality. In the first months of the Second World War in Asia, Japanese forces captured around 140,000 Western military personnel belonging to Western and colonial armies in East Asia, Southeast Asia and thePacific.2 Some of these men, and a small number of women captured as
nurses, were executed upon capture; the rest were consigned to prisonerof-war camps in Japan, Japanese colonies, and regions under Japanese
occupation or hegemony. A similar number of Western civilians were interned, especially in the Dutch East Indies (now Indonesia). Conditions in
the prisoner-of-war and internment camps varied dramatically, but theworst cases were marked by deprivation of food, shelter and medical care;by excessive labour demands; and by seemingly gratuitous brutality on
the part of camp guards.3 Poor conditions in some camps fed a generalperception in Western media that all prisoners were treated badly and that
all Japanese military personnel were immensely brutal. In War Without
Mercy, Dower has vividly described how the two sides in the war over

1

2

3

Proclamation by the Heads of Governments, United States, China and the United Kingdom,
26 July 1945, US Department of State, Foreign Relations of the United States: Diplomatic
Papers: The Conference of Berlin (the Potsdam Conference), 1945, vol. 2, US Government
Printing Office, Washington, DC, 1945, p. 1476.
Japanese forces also captured a large but uncertain number of Asian military personnel inthe British Indian, Dutch East Indian and Filipino armed forces in this period. As was theircustom with soldiers of the Republic of China captured in China after the outbreak of hostilities there in 1937, Japanese commanders released many of these troops soon after capture. Many others were recruited under varying degrees of duress to serve the Japanese
armed forces as labourers or auxiliary soldiers.
Bernice Archer, The Internment of Western Civilians Under the Japanese, 1941–1945,
Routledge Curzon, London, 2004; Gavan Daws, Prisoners of the Japanese, Scribe, Melbourne, 1994.

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time adopted shrill, racialized views of each other that gave wide currency
to such perceptions.4
Whereas most of the provisions of the Potsdam Declaration embodied intentions to shape the future of Japan, the statement concerning war
criminals was broader because it reflected the Allied intention to influenceinternational law, which would apply to all nations. The Allies’ aim in thisclause was to reinforce in international law the commitment to bring theperpetrators of violence against prisoners of war to account. In particular,
the Allied planners intended that the standards set out in the 1907 Hague
Convention on the Laws and Customs of War on Land and the 1929 Geneva Convention governing the treatment of prisoners of war5 would be
enforced systematically both in the International Military Tribunal(‘IMT’), which tried German leaders at Nuremberg, and in the IMTFE at
Tokyo, creating a precedent that would oblige future generations to behave better during conflicts, or at least to reckon with war crimes. Thisintention had been manifested in the St. James Declaration, signed in
London in January 1942 by several of the Allied powers, which foreshadowed reckoning with war criminals through a “channel of organised justice”.6 Robert H. Jackson, who became Chief Prosecutor at the Nuremberg
IMT, stated explicitly: “through these trials we should be able to establishthat a process of retribution by law awaits those who in the future similarly attack civilization”.7 In the event, however, it proved significantly moredifficult than expected to establish the guilt of the defendants in Tokyoaccording to reasonable legal standards.

4

5

6
7

John W. Dower, War Without Mercy: Race & Power in the Pacific War, Pantheon Books,
New York, 1986.
See Andrew Webster, “Hague Conventions (1899, 1907)”, The Encyclopedia of War,Blackwell, Oxford, 2011 (https://doi.org/10.1002/9781444338232.wbeow271); Arnold
Krammer, Prisoners of War: A Reference Handbook, Praeger Security International,
Westport, CT, 2008, pp. 122–23. For the full texts of these conventions, see Convention(IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 1907 (https://www.legal-tools.org/doc/
fa0161/); and Convention relative to the Treatment of Prisoners of War, 1929 (https://www.
legal-tools.org/doc/1d2cfc/).
Punishment for War Crimes, HMSO, London, 1942, p. 6.
Report of Robert H. Jackson, U.S. Representative to the International Conference on Military Trials, London, 1945, US Department of State, Washington, DC, 1949, p. 49 (https://www.legal-tools.org/doc/4304bb/).

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The Potsdam Declaration, with its emphasis on prisoners of war in
Article 10, provided part of the legal basis for the creation of the IMTFE.
Behind the scenes, however, the intention to punish those who had mistreated Allied prisoners8 was overshadowed from the start by the UnitedStates government’s determination to use the international court to prosecute Japanese leaders for the crime of aggression, often characterized as‘crimes against peace’. In part, this emphasis rested on a division of labour between national tribunals and the international tribunal. During themonths between the Potsdam Declaration of July 1945 and the opening of
the Tokyo Tribunal on 29 April 1946, the United States, Australia, theUnited Kingdom, and China had all begun to convene local trials of Japanese military personnel for war crimes, including crimes against prisoners;
preparations for trials were also under way in French Indochina and theDutch East Indies, while the Philippines was expected to initiate a trial
process following its independence in July 1946. The U.S. prosecutions,and later those by the French authorities, focused primarily on illtreatment of prisoners of war and internees; other jurisdictions prosecuteda wider range of offences, but crimes against prisoners were prominent inall the schedules of arraignments except in China and the Philippines.9
There was no risk, therefore, that brutalities against prisoners would escape legal reckoning.
9.2. Indictment
When the indictment for the IMTFE was being prepared, 10 charges ofcrimes against peace against Japan’s leaders had committed occupied centre stage. Therefore, in the Charter for the IMTFE, issued on 19 January
1946, the category “(a) crimes against peace” was in first place, followedby “(b) conventional war crimes” and “(c) crimes against humanity”. U.S.
General Douglas MacArthur, as Supreme Commander for the Allied Powers, went one step further, pressing the other Allied powers not to use their
8

9

10

In this chapter, the term ‘prisoners’ refers to both prisoners of war and internees, as wasevidently intended by the Potsdam Declaration, though not by the 1929 Geneva Convention.
Sandra Wilson, Robert Cribb, Beatrice Trefalt and Dean Aszkielowicz, Japanese War
Criminals: The Politics of Justice After the Second World War, Columbia University Press,
New York, 2017, pp. 67–103.
For the complex process leading to the formation of the IMTFE, see Yuma Totani, The
Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War Two, Harvard
University Asia Center, Cambridge, 2008, pp. 20–28.

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local courts to prosecute crimes against peace but instead leave that category of indictment exclusively to the IMTFE. In late 1946, well into theproceedings, the US Prosecutor at the IMTFE, Joseph Keenan, contemplated dropping the conventional war crimes charges altogether. This
would have restricted the IMTFE to judging crimes against peace andwould have put an end to charges concerning prisoners.11 Over time, thebullet-point order in which the categories of crime were presented in the
IMTFE Charter crystallized into a pronounced hierarchy: upon conviction,
the defendants in Tokyo were identified as ‘Class A’ war criminals, eventhough some of them had also been convicted for conventional war crimes.
By contrast, crimes against humanity (conceived by the Nuremberg IMT
as crimes by a regime predominantly against its own citizens) were notprosecuted as such in the IMTFE and were mentioned only once, in passing, in the final judgment.
The IMTFE’s emphasis on crimes against peace was also strongly
evident in the indictment presented at the opening of proceedings. The
indictment comprised 55 counts or specific charges, which were classified
into three groups.12 The first group contained 36 counts of crimes against
peace; defendants were separately charged with conspiracy to wage aggressive war and with initiating and waging such war against various
powers, collectively and individually. In support of these counts, Appendix A of the indictment included a detailed history of alleged Japaneseaggression in East Asia since 1928; Appendix B consisted of a digest ofinternational agreements which could be read as outlawing aggression;
Appendix C itemized assurances by Japanese governments that they had
no aggressive intention.
The second group of charges, headed “Murder”, comprised 15
counts. These counts were predicated on the assumption that, because Japan’s war was illegal, the Japanese military was not entitled to so-called‘belligerent rights’, that is, the right to kill enemy soldiers in battle or tokill enemy civilians on the grounds of military necessity without being
liable for murder charges. Many of these counts labelled the killing of Allied military personnel in the course of Japan’s military operations in
Mongolia and the Soviet Far East in 1939 and in East Asia, Southeast
11
12

Ibid., p. 115.
“Japanese Indictment”, Proceedings of the International Military Tribunal for the Far East
(http://www.legal-tools.org/doc/6f22e0/).

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Asia, and the Pacific from 1941 to 1942 as murder. Count 44 alleged aconspiracy to kill Allied prisoners of war immediately after capture.
Counts 45 to 50 referred to the mass killing of civilians in specified placesin China, including the 1937–1938 Nanjing Massacre.
Barring Count 44, the remaining crimes against prisoners were included in the third group of charges, which only included Counts 53 to 55,
referred to as “Conventional War Crimes and Crimes against Humanity”.
These counts accused the defendants of violating the laws and customs of
war in relation to Allied prisoners of war and internees. 13 Unlike thecounts grouped under ‘crimes against peace’ and ‘murder’, these counts
did not refer to specific incidents, actions or events, but identified three
ways in which Japanese leaders were allegedly guilty of crimes against
prisoners. Count 53 alleged that the defendants had been part of a conspiracy to “order, authorize and permit” their subordinates “to commit […]breaches of the Laws and Customs of War […] against many thousands ofprisoners of war and civilians then in the power of Japan”. Count 54 alleged more directly that the defendants had, as individuals, “ordered, authorized and permitted” the offences, while Count 55 alleged that the defendants, as leaders of Japan, had “deliberately and recklessly disregarded
their legal duty to take adequate steps to secure the observance and prevent breaches” of international law.14 In other words, Count 54 alleged the
direct complicity of the senior leaders in crimes against prisoners, whereas Counts 53 and 55 alleged different forms of indirect culpability.
Counts 44 and 53 (conspiracy to kill Allied prisoners of war and tocommit conventional war crimes more generally) might have been elastic
enough to ensnare the Tokyo defendants; as a criminal charge, conspiracy
could encompass both an agreement to commit an illegal act, even if thatact was never carried out, and the carrying out of some small act, relatively innocuous in itself, which was part of a larger criminal plan. The
Counts, however, were procedurally problematic because the Charter of
the IMTFE omitted to identify conspiracy to commit conventional war
crimes as a crime within the ambit of the Tribunal in the way that it identified conspiracy to commit crimes against peace and crimes against hu13

14

Whereas Australian, Chinese and Netherlands Indies authorities issued legislation after the
war to define the acts considered to be war crimes, the United Kingdom and the UnitedStates relied on the formulation “laws and customs of war” to cover any action, anticipatedor not, which might be regarded as repugnant to humane practice.
“Japanese Indictment”, pp. 12–13, see above note 12.

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manity.15 In the end, the court ruled that it had no authority to pronounce
on these charges.16
The prosecution charged 26 of the original 28 defendants underCount 54. Kenji Dohihara, Shunroku Hata, Naoki Hoshino, Seishirō Itagaki, Okinori Kaya, Kōichi Kido, Heitarō Kimura, Kuniaki Koiso, Akira
Mutō, Osami Nagano, Takazumi Oka, Hiroshi Ōshima, Kenryō Satō,
Mamoru Shigemitsu, Shigetarō Shimada, Teiichi Suzuki, Shigenori Tōgō,
Hideki Tōjō, and Yoshijirō Umezu were all said to have committed offences relating to this count between 7 December 1941 and 2 September
1945. Sadao Araki, Kingorō Hashimoto, Kiichirō Hiranuma, Kōki Hirota,
Iwane Matsui, Yōsuke Matsuoka, and Jirō Minami were said to havecommenced their offences in China on 18 September 1931, the date of theso-called Mukden Incident, which marked the beginning of Japan’s invasion and occupation of Manchuria. Only the propagandist Shūmei Ōkawa,
who held no government position, and the diplomat Toshio Shiratori were
not charged under Count 54.
Establishing direct culpability, however, was problematic. To remain faithful to the principles affirmed at the Nuremberg IMT – “criminal
guilt is personal […] mass punishment should be avoided”17 – the IMTFE
could not simply attach collective guilt to all Japanese leaders. Instead, it
was necessary to show some direct personal engagement with the crimes.
The subordinates who had committed crimes, however, were often somedistance below the defendants in the Japanese political and military hierarchy and often far-removed geographically.
This issue was particularly problematic in the Japanese case for fivereasons. First, immediately after the surrender, the Japanese military authorities had ordered the wholesale destruction of documents containing
military secrets, including documents that might implicate military per15

16

17

For a brief outline of adoption of conspiracy as a charge in the Nuremberg IMT, and thereafter at the IMTFE, see Bradley F. Smith, The Road to Nuremberg, Basic Books, New
York, 1981, pp. 33–37, 50–53.
IMTFE Judgment, reproduced in Neil Boister and Robert Cryer (eds.), Documents on theTokyo International Military Tribunal: Charter, Indictment and Judgment, Oxford University Press, Oxford, 2008a, p. 85. The judgment and the transcripts (‘Transcript’) of the
IMTFE are available in the ICC Legal Tools Database.
Cited in Allison Marston Danner and Jenny S. Martinez, “Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal
Law”, in California Law Review, 2005, vol. 93, no. 1, p. 85.

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sonnel in war crimes.18 The destruction of documents was by no meanscomprehensive, but it was extensive enough to obscure the record of decision-making.
Second, even in normal times, Japanese decision-making was sometimes diffuse, with policy decisions gradually taking shape through shifts
and modifications, rather than being recorded definitively in the minutesof a meeting or in a decree by a commander. Attributing specific responsibility for a decision was often extremely difficult.
Third, the Japanese military hierarchy was sometimes seriously ambiguous. An officer serving in a prisoner-of-war camp, for instance, might
be simultaneously operating within two hierarchies – the hierarchy of theprison camp administration and the hierarchy of his own regular unit. This
circumstance sometimes made it difficult for a court to determine whichline of command should share responsibility for that officer’s misdeeds.
Fourth, behind a veneer of politeness and solidarity, both the Japanese military and the Japanese political class were deeply factionalized.
This factionalization contributed strongly to a substantial turnover among
high-level office-holders in Japan during the period being examined by
the Tribunal. Many cabinet ministers and military commanders held key
positions for just a few months before moving on to other posts or having
interludes of relative powerlessness because of health or factional considerations.
The fifth, and most important, reason for the difficulty in establishing direct culpability of Japanese national leaders in war crimes was thatmost of the reported crimes were prima facie the consequence of lowerlevel decisions. Summary executions, unwarranted beatings, the sendingof sick men to work, failure to attend to problems of sanitation and inadequate accommodation, and the withholding of food and medical supplies
were all local decisions most unlikely to have been directly ordered bysenior leaders in Tokyo.
The 26 defendants arraigned on Count 54 were also charged underCount 55, which embodied the still ill-defined concept of command responsibility – that is, the principle by which higher-ranked officers might
be held legally accountable for the misdeeds of their subordinates whenno orders had been issued, or when alleged orders had been lost. Com18

Totani, 2008, p. 106, see above note 10.

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mand responsibility, sometimes known as the ‘separate offence of the superior’, makes the commander responsible for failing to take appropriate
action to prevent subordinates from committing a war crime, to halt acrime in process, or to punish those who had committed a crime.19 This
form of command responsibility separates commanders from the (presumed) atrocities and makes them responsible instead for a failure of duty
to control or punish those under them. In support of this charge, the prosecution referred explicitly to the conviction of General Tomoyuki Yamashita in the first US war crimes trial in the Philippines.20 In 1945, Yamashita was found guilty of failing to take sufficient action to prevent Japanese troops in Manila from committing acts of murder, rape and pillage
during the weeks immediately before the fall of the city to American forces near the end of the war.21
The main body of the IMTFE indictment identified only modes of
responsibility for crimes against prisoners. For further specification, one
was referred to a separate, somewhat ramshackle document labelled “Appendix D”. This section did not set out specific incidents, actions or
events, either. However, it identified specific categories of offences
against prisoners of war. It referred to the 1929 Geneva Convention on
Prisoners of War, but did not summarize the document in the way that

19

20
21

See Danner and Martinez, 2005, see above note 17; Chantal Meloni, “Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?”, in Journal of International Criminal Justice 2007, vol. 5, pp. 619–23.
Totani, 2008 (p. 105, see above note 10), distinguishes what she calls the “cabinet responsibility” of civilian political leaders from the “command responsibility” of military officers, but I believe this formulation is misleading. The term ‘cabinet responsibility’ conventionally refers to the obligation of cabinet members to support cabinet decisions, regardless of whether they personally agree with those decisions. It is unhelpful to apply thisestablished term to the very different situation in which criminal responsibility is attributed
to cabinet members for failing to halt atrocities. Even in its own terms, moreover, the characterization of this charge as “cabinet responsibility” is misleading. The prosecutors formulating this charge did not limit its scope to cabinet ministers, but instead included cabinet “advisers” (presumably civilian bureaucrats) and “every high officer in the chain ofcommand directly concerned with these matters” (Transcript, 17 February 1948, p. 40111(https://www.legal-tools.org/doc/1c9dfe/)).
Transcript, 30 January 1947, pp. 16787–88 (https://www.legal-tools.org/doc/e764f7/).
On the Yamashita trial, see Richard L. Lael, The Yamashita Precedent: War Crimes andCommand Responsibility, Scholarly Resources, Wilmington, Delaware, 1982, and Allan A.
Ryan, Yamashita's Ghost: War Crimes, MacArthur’s Justice, and Command Accountability, University Press of Kansas, Lawrence, Kansas, 2012.

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Appendix A recapitulated the international agreements on non-aggression.
The categories of ill-treatment identified in this Appendix were:• employment of prisoners as labour on tasks related to the war effort;• murder, torture, ill-treatment and rape;• employment of prisoners in dangerous labour;• inadequate provision of food, clothing and shelter;• excessive and illegal punishment, including arbitrary, capricious
and collective punishment;• failure to make adequate sanitary provision for prisoners or to provide adequate medical care;• humiliation of prisoners, including by forcing them to work in public view and requiring Allied officers to salute Japanese other ranks;• failing to keep proper records and to provide adequate information
on prisoners held;• obstructing the work of the Red Cross and the Protecting Power, including withholding Red Cross parcels;• killing of prisoners on the point of surrender or when they were nolonger able to offer resistance and killing of survivors of ships sunkin naval action.
Under the Hague Convention (Article 6), the State holding prisoners of war was permitted to put them to work “according to their rank andaptitude, officers excepted”. The Convention specified, however, that“[t]he tasks shall not be excessive and shall have no connection with theoperations of the war”. At issue in Tokyo, therefore, was not forced orslave labour – prosecuted in Nuremberg as a crime against humanity – but
rather the tasks to which prisoner labour had been set and the conditions
in which prisoners worked.
Appendix D did not acknowledge that neither the Hague nor the
Geneva Convention specifically provided for the treatment of civilian internees. The indictment as a whole appears to have regarded internees assimilarly positioned as prisoners of war and, therefore, covered in thesame way. The disorganized character of Appendix D, moreover, was ex-

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acerbated by its specification of a range of crimes that were related, not toprisoners but to the inhabitants of occupied territories.22
The IMTFE indictment in relation to crimes against prisoners presented one further preliminary legal issue: whether any crime had in fact
been committed at international law. The prosecution, as noted above, invoked the 1907 Hague Convention and the 1929 Geneva Convention as
evidence of international standards as well as pointed to Japan’s ratification of the former and its signature of the latter. Although Japan had neverratified the 1929 Convention, the prosecution asserted that it was applicable to Japan on two grounds. For one, ratification by many other powers
had given the Convention’s provisions the status of customary international law, binding on all powers, including non-signatories. The prosecution also stressed that, in January 1942, the Japanese government formallyindicated it would “apply mutatis mutandis, the provisions of that Convention to American prisoners of war” and had subsequently extended thisguarantee to “English, Canadian, Australian and New Zealand prisonersof war in their power”. 23 The prosecution maintained that this pronouncement bound Japan to the provisions of the Convention. The defence, by contrast, pointed to Japan’s failure to ratify the 1929 Geneva
Convention and argued that the expression “mutatis mutandis” gave Japanese authorities absolute freedom to determine the extent to which itcomplied with the Convention.24 In the end, the Tribunal chose not to address the significance of non-ratification or the precise meaning of “mutatis mutandis", ruling instead that Japan was bound by an obligation to behave humanely, regardless of whether or not it had signed specific international agreements.25
9.3. Proceedings
In hearing the charges, the Tribunal organized its proceedings into roughly
chronological ‘phases’.26 The earliest phases examined Japan’s two inva22
23
24

25
26

“Japanese Indictment”, Appendix D, p. v (http://www.legal-tools.org/doc/6f22e0/).
Ibid., p. ii.
Neil Boister and Robert Cryer, The Tokyo International Military Tribunal, Oxford University Press, New York, 2008b, pp. 181–85; Totani, 2008, p. 109, see above note 10.
Transcript, 12 November 1948, pp. 49719–20 (https://www.legal-tools.org/doc/9ae0f4/).
The complex structure of the trial defies brief characterization. For a clear outline of theoverall structure, see R. John Pritchard, The Tokyo Major War Crimes Trial: Transcriptsof the Court Proceedings of the International Military Tribunal for the Far East, vol. 1,
Edwin Mellen Press, Lewiston, NY, 1998, pp. lxxi–lxxix.

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sions of China, categorized as the Manchurian Incident of 1931 and the
China Incident of 1937. In that context, the Tribunal heard its first evidence in relation to the ill-treatment of prisoners on 6 August 1946, whenan American journalist, John B. Powell, testified to the brutal and neglectful treatment of Western and Chinese civilians detained by the Kenpeitai
in Shanghai from December 1941.27
Later phases focussed on diplomatic and military events leading to
the Pearl Harbor attack, with the case concerning subsequent ill-treatmentof prisoners, Phase XIV, relegated to the latter part of the proceedings. In
practice, however, the ill-treatment of prisoners had been a sub-theme in
the proceedings well before the formal commencement of Phase XIV on
16 December 1946. On several occasions, the Tribunal interrupted proceedings on the prelude to Pearl Harbor to hear from prosecution witnesses whose duties would take them away from Japan before they would otherwise have been called to the stand.28 A report presented to the court by a
Dutch investigator, K.A. de Weerd, to document Japan’s attempts to destroy Dutch influence in occupied Indonesia also dealt with Japanese brutality towards prisoners and civilians in the former colony.29 From 10 to
16 December 1946, the Assistant Prosecutor of the Philippines, Pedro
Lopez, tabled 131 affidavits and examined five witnesses who testified
about atrocities in the Philippines, both inside and outside the camps.30
A significant volume of evidence on Japanese treatment of prisoners
had thus been heard by the Tribunal by the time the Australian lead prosecutor, Alan Mansfield, who carried the prosecution case for Counts 53 to
55, delivered his opening statement on 16 December 1946. He began byelaborating the argument, already outlined in the indictment, that Japanwas legally bound to adhere to the 1929 Geneva Convention on accountof the repeated assurances from the Japanese Foreign Minister, Shigenori
Tōgō, that Japan would abide by that Convention mutatis mutandis.31 He
27

Transcript, 6 August 1946, pp. 3270–83 (https://www.legal-tools.org/doc/8031d2/).
Ibid., 10–19 September 1946, pp. 5351–921 (https://www.legal-tools.org/doc/91705c/,https://www.legal-tools.org/doc/9ed10b/, https://www.legal-tools.org/doc/eb27b2/, https://www.legal-tools.org/doc/421ebe/, https://www.legal-tools.org/doc/f6fe26/, https://www.
legal-tools.org/doc/753fc8/, https://www.legal-tools.org/doc/4533d8/); ibid., 27 November
1946, pp. 11403–627 (https://www.legal-tools.org/doc/5f7add/).
29 Ibid., 6 December 1946, pp. 12130–342 (https://www.legal-tools.org/doc/2cedf9/).
30 Ibid., 10 December 1946, pp. 12348–850 (https://www.legal-tools.org/doc/754447/).
31 Alan Mansfield, Opening Statement, 16 December 1946, ibid., pp. 12856–60 (https://www.
legal-tools.org/doc/99f853/).
28

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then began to present evidence of Japanese atrocities against prisoners ofwar, internees and local residents in occupied territories (excluding thePhilippines, on which evidence had previously been presented).
Earlier in the proceedings, in July 1946, Mansfield obtained permission from the court not only to present a substantial portion of the atrocity
evidence in affidavit form, but also to present only selected extracts fromthose affidavits. The defence had strenuously objected to this procedure,emphasizing the importance of subjecting witnesses to cross-examinationand pointing out that many affidavits contained material favourable toboth sides. The Tribunal, however, overruled the objection on the basis of
Article 13 of the IMTFE Charter, according to which “[t]he Tribunal shallnot be bound by technical rules of evidence. It shall adopt and apply to thegreatest possible extent expeditious and non-technical procedure, andshall admit any evidence which it deems to have probative value”. Thisruling was probably influenced, in part, by practicalities. Court proceedings required around 100 copies of each document that was tabled; thecopying of entire affidavits would have increased the volume of paperaround six-fold, according to Mansfield. The Tribunal was already Occupied Japan’s most important consumer of paper.32 The only concession to
the defence was that the full documents from which any excerpts had beentaken were to be made available to the defence within a month of their
lodging.33
Mansfield announced a prosecution strategy which made no attempt
to draw a line of direct responsibility to the defendants, but instead, as heput it, demonstrated asimilarity of treatment throughout the territories occupied by
the Japanese forces […] [that would] lead to the conclusionthat such mistreatment was the result, not of the independentacts of the individual Japanese Commanders and soldiers,
but of the general policy of the Japanese forces and of theJapanese Government.34

Mansfield promised to present the court with a “chronicle of murder
and mistreatment” which would include evidence of massacres, depriva32

33

34

See R. John Pritchard, “The International Military Tribunal for the Far East and its Contemporary Resonances”, in Military Law Review, 1995, vol. 149, p. 26.
Transcript, 3 July 1946, pp. 1842–57, 1860, 1869–71 (https://www.legaltools.org/doc/
e470ed/); ibid., 15 July 1946, pp. 2287–93 (https://www.legal-tools.org/doc/aa90c8/).
Mansfield, 16 December 1946, see above note 31.

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The Tokyo Tribunal: Perspectives on Law, History and Memorytion of food, inadequate medical care, unreasonable labour demands, torture and capricious punishment. The Japanese authorities, he alleged, hadalso planned “to kill all prisoners of war in the event of there being a landing by Allied troops in Japan or any attempt made to recapture them”.35
The prosecution case under Count 54, thus, relied on the argument that acommon pattern of atrocities across the Japanese empire constituted evidence of a centrally-directed policy, even if that policy could not bedemonstrated directly from Japanese documents. Addressing the command responsibility charge under Count 55, he went on to outline the Japanese authorities’ efforts to prevent information about the condition of theprisoners from reaching the outside world. As he stated, it wasapparent that the Japanese Government, the members ofwhich were charged with the responsibility of seeing that
their forces complied with the rules of war, either knew ofmany of the breaches [of international law] and neglected totake any steps to prevent them, or failed to institute any
proper inquiry to ascertain whether the allegations containedin the protests [from Allied governments] were founded on
fact.36

In support of the prosecution case, Mansfield and his colleagues
from Australia, Canada, France, the Netherlands and the United States
adopted a strategy of flooding the court with a huge volume of evidence
falling into four categories. First, there were additional witnesses, whoprovided graphic testimony of their experiences and observations in Java,
Sumatra, Borneo, the Thailand-Burma Railway, Hong Kong and elsewhere. The witnesses seldom identified individual perpetrators, but instead delivered a broad picture of widespread cruelty and callous neglectof prisoners.
The second category of evidence consisted of hundreds of affidavits
and reports collected by national war crimes investigation teams for theirown trials. Much of the material makes for grim reading. A great deal of it
had already been presented in national courts and some was intended for
future trials, though the winding up of the trial process meant that some of
the Tokyo evidence was never presented elsewhere. The material varied
from sober, detailed reports with a strong air of plausibility to brief, probably exaggerated, claims based on hearsay. Reflecting the prosecution
35
36

Ibid.
Ibid.

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strategy in some of the national trials,37 however, the prosecution did notintend to establish the culpability of specific individuals for specific criminal acts. For the most part, on-the-spot perpetrators were not identified incourt. The intention, rather, was to conjure up a picture of pervasive cruelbehaviour on the part of tens of thousands of Japanese military personnel
with the aim of establishing the wickedness of the entire Japanese imperial venture and, hence, of its leaders. This category of evidence also included interrogation reports of captured Japanese soldiers.38 This material
received only passing attention in the courtroom.
The third category of prosecution evidence consisted of translationsof captured Japanese documents relating to prisoner policy and administration. The existence of these documents indicated that the official Japanese instruction to destroy sensitive material at the end of the war had
not been fully effective. On 7 January 1947, for instance, the prosecutiontabled an extract from an instruction sent by Japanese Prime Minister
Hideki Tōjō, in his capacity as Army Minister, to the commandant ofZentsuji prisoner-of-war camp in Shikoku on 30 May 1942. The instruction conveyed a somewhat contradictory message, telling the commandantthat he should uphold humanity while avoiding “a mistaken idea of humanitarianism” and stressing that the prisoners must work because “thepresent situation of affairs in this country does not permit anyone to lie
idle doing nothing but eating freely”.39 The prosecution’s point in presenting this material, however, was to demonstrate the engagement of thehighest level of the Japanese leadership with prisoner-of-war affairs, sothat they could subsequently be held accountable for what happened to theprisoners during the war.
The final element in the prosecution case was the courtroom examination of the defendants themselves. In his testimony, Tōjō began to address the prisoner issue on 30 December 1947 and immediately accepted
comprehensive political responsibility for Japanese policies in this area.
37

38

39

See, for instance, Robert Cribb, “The life and trial of Cho Un-kuk, Korean war criminal”,
in Critical Asian Studies, 2018, vol. 50, no. 3, pp. 329–52.
Transcript, 20 December 1946, pp. 13432–33 (https://www.legal-tools.org/doc/ceff3f/);“War Crimes, Sandakan Area: Statement taken down by and during interrogation by
Squadron Leader F.G. Birchall”, Sandakan, 26 October 1945, IMTFE Doc 5421 Exh. 1671
(http://www.legal-tools.org/doc/2e4844/).
“Instructions delivered to the Commander of the Zentsuji Division”, 30 May 1942, IMTFEDoc 1547-A, Exh. 1960 (http://www.legal-tools.org/doc/27ef18/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

He concluded this acceptance, however, defiantly: “I have nothing whatever to say on this point [legal responsibility and criminal liability] otherthan to state frankly that at no time during my entire career did I ever contemplate the commission of a criminal act”.40 He went on to claim that his
instructions had always been to treat prisoners “with humanity” and thatthe scale of the prisoner administration task had made it impossible to adhere to the Geneva Convention, meaning that policies had fallen reasonably within the mutatis mutandis promise. He defended the punishment ofprisoners of war for disciplinary breaches and for war crimes (specificallythe Allied bombing of civilians). He proposed a narrow interpretation of
Article 31 of the Geneva Convention prohibiting prisoners-of-war labouron military projects that would make the Thailand Burma Railway projectpermissible. While conceding that “on account of the relentless depredations to the sea-borne traffic by enemy sub-marines, it became vitally important to open a land route to that area [Burma],” he maintained that:
The railway route lay at a great distance behind the front
lines and there being no military operations in progress inthat area at that time, it was quite apparent the construction
work on this railway could not be construed as being confined within the class of military operations prohibited toprisoners of war labor by the Hague and Geneva Treaties.41

For the prosecution, establishing the direct responsibility of individual defendants did not mean connecting them to specific incidents, butrather connecting them individually to the Japanese policy on prisoners.
Tōjō, who concurrently held the positions of Prime Minister and Army
Minister from October 1941 to July 1944, was alleged to have issued instructions on the treatment of prisoners of war – requiring them to workon military projects inconsistent with Japan’s undertaking to apply theprovisions of the Geneva Convention mutatis mutandis. He was held responsible specifically for the decision to employ prisoners in the Thailand-Burma Railway’s construction.42 Kimura, who had been Deputy Army Minister, was shown to have been responsible for laws under which
40
41

42

Transcript, 30 December 1947, pp. 36412–14 (https://www.legal-tools.org/doc/7b86b6/).
Ibid., p. 36421. Article 31 of the Geneva Convention read, “Work done by prisoners of
war shall have no direct connection with the operations of the war. In particular, it is forbidden to employ prisoners in the manufacture or transport of arms or munitions of any
kind, or on the transport of material destined for combatant units”.
Transcript, 16 December 1946, pp. 12871, 12874, 12876 (https://www.legal-tools.org/doc/
99f853/).

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prisoners of war were executed for attempting to escape and under which
downed Allied airmen were executed as war criminals for bombing civilians. He was blamed for a policy of exhibiting prisoners publicly to humiliate them and for employing them on war-related work. Kimura hadlater served as Armed Forces Commander in Burma, and was thus also
blamed for the treatment of prisoners there.43
Mutō and Satō, similarly, were shown to have headed the Military
Affairs Bureau, which co-ordinated prisoner-of-war affairs. Former Foreign Ministers Tōgō and Shigemitsu were held responsible, along with
Tōjō (who had briefly served as Foreign Minister), for failing to act on
Allied protests about the treatment of prisoners that had been delivered to
the Foreign Ministry by Swiss authorities.44 These protests had gone also
to the Navy Ministry, thereby implicating Shimada, Oka and Nagano, who
had been Navy chiefs.45 Shimada and Nagano were also held responsible
for the decision to employ prisoners in the Thailand-Burma Railway project.46
Umezu had been a commander of the Kwantung Army (that is, theJapanese forces stationed in Manchuria) and was held responsible for using prisoners as military labour,47 as was Itagaki, who had also had been
military commander in Singapore from April 1945 until the end of the war.
“Upon him”, according to the rather vague words of the prosecutor, “rests
some responsibility for the breaches of the laws of war in and about Singapore during the period he was in command”.48 Suzuki was mentioned asa member of the Tōjō cabinet bearing responsibility for war crimes because he would have known of the Allied protests as a cabinet member.49
The British prosecutor, Arthur Comyns Carr, began his summary of
the cases against the defendants on 30 January 1947. He addressed boththe crimes against peace and war crimes. For the latter, he relied on thecase set out in the indictment and elaborated by Mansfield – that Japan
had bound itself to treat prisoners humanely and had systematically and
43
44
45
46
47
48
49

Ibid., pp. 12871–72, 12875.
Ibid., pp. 12873–74.
Ibid., p. 12875.
Ibid., p. 12876.
Ibid.
Ibid.
Ibid., p. 12875.

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deliberately failed to do so. Dohihara, Hata, Itagaki, Kimura, Matsui,
Minami and Mutō were alleged to be directly responsible for prisoner
conditions. Kimura, Mutō and Umezu had also had prisoner-related responsibilities at the centre, along with Oka, Satō, Shimada, Suzuki and
Tōjō. Shigemitsu and Tōgō had, it was alleged, failed to use their positions as Foreign Minister to seek to ameliorate the treatment of the prisoners. Kaya and Kido were alleged to have known of atrocities and to havedone nothing to prevent them. It appeared, however, that the prosecution
had quietly dropped its case against Araki, Hashimoto, Hiranuma, Hirota,
Hoshino, Koiso and Ōshima.50
9.4. Defence
In responding to the flood of documentary and witness evidence of wartime atrocities, the defence, for the most part, did not seek to refute thefacts presented by the prosecution, though occasionally it drew attention
to the hearsay nature of evidence presented. 51 Instead, their principal
strategy was to draw out the context of prisoner suffering so as to present
that hardship as a consequence of war, and of local decisions, rather thanas a consequence of central policy.52 A ruling from the Tribunal President,
Sir William Webb, on 3 September 1947, blocked the defence from raising examples of good conditions and favourable treatment in camps as ameans of refuting the prosecution argument that a universal pattern ofatrocities constituted evidence of central policy:
We know that there are tens of thousands of kind-hearted
Japanese. We would assume in the army itself, in the navy, inthe air force, many Japanese behaved very well but that is
not an answer to these charges. Meet the charges madeagainst you and do not try to prove that in other cases where
no charges were made no faults could be found.53

The defence summation was presented by Kenzō Takayanagi, aprominent conservative lawyer who later chaired a Commission set up toreconsider Japan’s post-war constitution. The core of the defence strategy
50
51

52

53

Ibid., 30 January 1947, pp. 16784–86 (https://www.legal-tools.org/doc/e764f7/).
For instance, ibid., 17 December 1946, pp. 13041–49 (https://www.legal-tools.org/doc/
e3cb30/).
For instance, ibid., 18 December 1946, pp. 13147–61 (https://www.legal-tools.org/doc/
404336/).
Ibid., 3 September 1947, p. 27474 (https://www.legal-tools.org/doc/731538/).

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was to accept the reality of war crimes – Takayanagi opened with the observation “War is a brutal affair”54 – but to deny the culpability of the senior figures on trial in Tokyo. He noted that the American members of theso-called ‘Commission of Fifteen’ at the Versailles Conference55 had argued against criminalizing the failure to prevent war crimes; and that inEnglish law, negligence causing death was seen only as manslaughter, a
non-capital offence.56 Despite the similarity of the charges in Nuremberg
and Tokyo, he dismissed what he called “the facile assumption that theGerman and Japanese situations were the same”, arguing that German
command structures were far more rigid than Japanese ones. By this hesuggested that the German High Command bore greater responsibility foratrocities than the Japanese High Command, which was less in control of
its subordinates. He rejected as unwarranted speculation the idea that similarities in the pattern of atrocities perpetrated by German and Japaneseforces proved there had been a concerted plan to commit war crimes, asserting that any similarity in the offences was likely to have been simply
the product of similar wartime conditions. Somewhat contradictorily, healso suggested that the crimes of Japanese soldiers might have arisen fromJapanese culture: “Crimes no less than masterpieces of art may express
certain characteristics reflecting the mores of a race”.57 He did not specify
what these characteristics might be.
Takayanagi went on to argue carefully against the principle of individual responsibility for acts of State. There was, he said, no implication
in international law that national leaders bore criminal responsibility foractions they had taken by virtue of their office. He argued that the indictment invoked retroactive (ex post facto) law which was not in effect at thetime of the relevant acts or omissions.58 The prohibition of
ex post facto penalization is not a technical rule of American
jurisprudence. It is a rule based on natural and universal jus54
55

56
57
58

Ibid., 3 March 1948, p. 42201 (https://www.legal-tools.org/doc/62b7d1/).
The Commission of Fifteen was set up in January 1919 during the preliminary stage of thepeace negotiations to examine the possibility of prosecuting and punishing German war
criminals. See “Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties”, in American Journal of International Law, 1920, vol. 14, no. 1/2,
pp. 95–154.
Transcript, 3 March 1948, p. 42201 (https://www.legal-tools.org/doc/62b7d1/).
Ibid., p. 42203.
Ibid., pp. 42204–24.

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tice. As fire burns and water flows alike in Washington andTokyo, so a violation of that rule will be felt to be unjust andoppressive in the East as well as in the West.59

More specifically, Takayanagi reminded the court that Japan had not
ratified the 1929 Geneva Convention and that Japan’s mutatis mutandis
message had no more force in law than a tourist announcing that he intended to go to watch kabuki the next day.60 He scorned the argument that
personal liability for government officials had been created by Article 4 of
the 1907 Hague Convention which specified that “[p]risoners of war arein the power of the hostile Government, but not of the individuals or corps
who capture them”. “No one supposes that German prisoners in GreatBritain were or are in the personal custody of Mr. At[t]lee and Mr. Morrison and Miss Wilkinson.61 It is the state, the state alone that is intended”.62
Takayanagi then tackled again the argument that common patternsof Japanese brutality reflected a common plan, pointing out that the hugemass of evidence actually showed great variation. Compulsory oaths notto escape had been imposed on prisoners of war, for instance, in Singapore, Hong Kong, Borneo, Java, Zentsuji and Formosa, but not in Burmaor the Philippines.63 “If cruel events took place, they were the sporadic
acts of local officers of inferior rank.”64 Takayanagi criticized the prosecution for presenting cases of massacre and prisoner-killing without acknowledging their likely context of rebellion and mutiny in occupied territories. He objected to the Tribunal President’s instruction that examples ofgood treatment of prisoners by Japanese authorities could not be adduced
to balance cases of bad treatment, given that the prosecution case had
rested on demonstrating a consistent pattern of bad treatment.65

59
60
61

62
63
64
65

Ibid., p. 42224.
Ibid., pp. 42255–59.
Clement Attlee was the British Prime Minister at the time; Herbert Morrison was his deputy; and Ellen Wilkinson was British Minister of Education and a prominent Labour party
figure.
Transcript, 3 March 1948, p. 42259, see above note 56.
Ibid., p. 42261.
Ibid., p. 42262.
Ibid., p. 42267.

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9.5. Judgment
The bench began to deliver its rulings on 4 December 1948. The majority
judgment of the IMTFE set out what it claimed to be the obligations of agovernment in relation to prisoners (including prisoners of war and internees). It also reviewed the indictment, striking out some 45 of the original 55 counts, including all of those in the group headed “Murder”, whichwere ruled to be either invalid or redundant.66
By far the largest part of the final judgment of the IMTFE addressed the issue of crimes against peace. The judgment offered a detailed
evaluation of the evidence on Japan’s policies of military expansion since
1928 and its social and economic policies in the occupied regions of Manchuria and China. “Conventional war crimes” were addressed in Chapter
VIII of the judgment. There, the judges set out an executive summary ofJapanese war crimes under numerous headings: “murder of captured aviators”, “massacres”, “death marches” and so on. The judgment made little
attempt to connect the defendants directly to the atrocities, dealing withthe links in no more than a few scattered lines. There was no summationof the evidence concerning war crimes in the final judgment. Instead, thejudgment read:
After carefully examining and considering all the evidence
we find that it is not practicable in a judgment such as this tostate fully the mass of oral and documentary evidence presented; for a complete statement of the scale and character of
the atrocities reference must be had to the record of the trial.67

Unlike at the Nuremberg IMT, there were no absolute acquittals at
the IMTFE. The only defendants who escaped a guilty sentence on at least
one charge were the two who died before the end of the trial (Matsuoka
and Nagano) and the one who was ruled unfit to stand (Ōkawa). The
judges, however, discriminated carefully among the various charges. Except for Kimura, every one of the remaining 25 defendants was acquitted
on at least one charge. Of the 24 men charged with direct responsibility
for war crimes under Count 54, only five – Dohihara, Itagaki, Kimura,Mutō and Tōjō – were found guilty. These men were all senior military
officers against whom the prosecution had been able to present direct,
66
67

Boister and Cryer, 2008b, p. 73, see above note 24.
IMTFE Judgment, reproduced in Boister and Cryer (ed.), 2008a, p. 531, see above note 16.

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documentary evidence of formal responsibility for prisoners. Anotherfive – Hata, Hirota, Koiso, Matsui and Shigemitsu – were found guilty ofcommand responsibility under Count 55. Fourteen defendants were found
not guilty of both Count 54 and Count 55. The seriousness with which the
Tribunal regarded the guilty verdicts, however, is reflected in the fact thatthe five men convicted under Count 54 (direct responsibility) were all
sentenced to death and were subsequently executed. Two of the five defendants (Hirota and Matsui) found guilty under Count 55 were likewise
sentenced to death and executed. None of those acquitted of the war
crimes charges were executed, though all received prison terms on thebasis of their other convictions.
9.6. Conclusion
At the end of the Second World War, the Allied authorities placed a highpriority on prosecuting Japanese leaders and military personnel for thebrutalities inflicted on about 140,000 Western prisoners of war and a similar number of internees who had been in Japanese custody during the war.
The Tokyo Tribunal, which tried senior Japanese leaders, gave greater attention to crimes against peace than to the ill-treatment of prisoners, but
most of the 28 defendants faced charges for both their direct responsibility
for atrocities against prisoners and their failure to take the steps within
their power to halt or limit brutalities ordered by others. Although a handful of defendants could be linked to abusive treatment of prisoners using
documentary evidence, the core strategy of the prosecution was to attribute collective responsibility for the ill-treatment to the defendants byflooding the court with evidence of a mass of individual but largely anonymous instances of brutality or culpable neglect. The prosecution argued
that a common pattern of atrocities in this evidence was proof of a central
plan for abuse of prisoners. In response, the defence largely accepted thefactuality of the atrocities but sought to portray them as a consequence ofthe difficult circumstances of the war and of the initiative of lower-ranked
military personnel. The Tribunal ruled that the defence could not refutethe claim of a general pattern by bringing forward evidence of favourable
behaviour that would show a more varied pattern of behaviour.
The Tribunal found only five defendants guilty of crimes against
prisoners; in all five cases, the charge rested in part on specific documentary evidence, rather than only on the inference of policy based on acommon pattern of atrocities. Another five defendants were found guilty
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9. ‘Conventional War Crimes’: The International Military Tribunal for the Far Eastand the Ill-Treatment of Prisoners of War and Civilian Interneesof failing to attempt to stop crimes by others. The severity of the sentences against these defendants – 7 of the 10 were condemned to death – hastended to mask the large number of acquittals on war crimes charges. In
effect, although it did not say so, the Tokyo Tribunal agreed with the defence argument that responsibility for most war crimes was located lower
in the Japanese military hierarchy.

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10______
Nuremberg, Tokyo and the Crime of Aggression:
An Intertwined and Still Unfolding Legacy
Donald M. Ferencz*
10.1. Introduction
At both the International Military Tribunal (‘IMT’) at Nuremberg and theInternational Military Tribunal for the Far East (‘IMTFE’) at Tokyo, waging a war of aggression was the core element of the indictable offence
known as crimes against peace.1 Though never before charged in a courtof law, it was famously branded at Nuremberg as “the supreme international crime”.2
In what may be seen as the culmination of more than seven decadesof efforts to meaningfully effectuate the precedent established at Nuremberg, the International Criminal Court (‘ICC’) has just recently finallymanaged to activate its own jurisdiction over the crime of aggression.3 Yet
the ICC’s long-awaited aggression jurisdiction is still rather limited, and islikely to remain so for quite some time. Thus, insofar as establishing illegal war-making as a universally prosecutable criminal offence goes, the
*

1

2

3

Donald M. Ferencz is Visiting Professor at Middlesex University School of Law and theConvenor of the Global Institute for the Prevention of Aggression. He served as an NGO
advisor to the Special Working Group on the Crime of Aggression, charged with developing amendments to the Rome Statute of the International Criminal Court (‘ICC’), defining
the crime of aggression and setting forth the circumstances under which the ICC may exercise its aggression jurisdiction. His work in the field of international justice focuses primarily on strengthening the rule of law through universalization of the core crimes of theICC.
At Nuremberg, crimes against peace was charged as an offence separate and distinct from
crimes against humanity and war crimes; at Tokyo, it was a sine qua non for prosecutionsof the major war criminals.
Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg,
14 November 1945 – 1 October 1946, Nuremberg, 1947 (‘Nuremberg Trial’), vol. I, p. 186(https://www.legal-tools.org/doc/f21343/, https://www.legal-tools.org/doc/3c08b1/).
The ICC’s aggression jurisdiction was activated as of 17 July 2018, by way of the required
re-approval of amendments on the crime of aggression which were adopted at the ICC Review Conference held in Kampala in 2010.

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legacy of the Tribunals remains very much a work in progress.4 The following discussion is intended to contextualize that legacy within theframework of the ongoing efforts to ensure that those most responsible forthe crime of aggression can be held accountable for their crimes in a courtof law.
10.2. Early Perceptions of the Trials
From their inception, the Nuremberg and Tokyo Tribunals were sharply
criticized, and understandably so. After all, the trials were imposed on thevanquished by the victorious Allies, who appointed judges strictly fromamong themselves, raising the spectre of inherent judicial bias.5 At Nuremberg, the proceedings were authorized by the 23 nations that joined
the London Agreement. 6 By contrast, the Tokyo Tribunal was createdsolely by the United States, acting through the authority of General Douglas MacArthur as the Supreme Commander for the Allied Powers.7 In an
asymmetric departure from the ideal of equality before the law, the indictments of both tribunals covered only crimes alleged to have beencommitted on behalf of the defeated nations, rather than by those sitting injudgment. The notional standard of equality of arms between the accused
4

5

6

7

See below Section 10.8., especially text to notes 61 et seq. For a discussion of the amendments and their implications, see Stefan Barriga and Leena Grover, “A Historic Breakthrough on the Crime of Aggression”, in American Journal of International Law, 2011, vol.
105, pp. 517-33; Claus Kreß and Leonie von Holtzendorff, “The Kampala Compromise on
the Crime of Aggression”, in Journal of International Criminal Justice, 2010, vol. 8, p.
1179; Claus Kreß and Stefan Barriga (eds.), The Crime of Aggression: A Commentary,Cambridge University Press, Cambridge, 2017; Kevin Jon Heller, “The Sadly Neutered
Crime of Aggression”, Opinio Juris, 13 June 2010 (available on its web site).
At the IMT, the judges were appointed by four countries: France, the United Kingdom, theUnited States, and the Soviet Union. The IMTFE judges were drawn from 11 countries:
Australia, Canada, the Republic of China, France, British India, the Netherlands, New Zealand, the Philippines, the United Kingdom, the United States, and the Soviet Union.
The Nuremberg Charter is annexed to the London Agreement of 8 August 1945 (https://www.legal-tools.org/doc/64ffdd/, https://www.legal-tools.org/doc/844f64/). The London
Agreement was signed by Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, France,
Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway,
Panama, Paraguay, Poland, the Union of Soviet Socialist Republics, the United Kingdom,
the United States, Uruguay, Venezuela and Yugoslavia. See Agreement for the Prosecution and Punishment of Major War Criminals of European Axis (https://www.legal-tools.
org/doc/5379a0/, https://www.legal-tools.org/doc/76efcc/).
See Annex for the IMTFE Charter and the Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 19 January 1946 (https://www.legal-tools.org/doc/
242328/), amended 26 April 1946 (https://www.legal-tools.org/doc/a3c41c/).

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An Intertwined and Still Unfolding Legacy

and their accusers was similarly compromised. The Charter of each of the
Tribunals expressly provided for fair trial for the defendants. Yet according to the Tokyo Charter, defence counsel could be removed “at any time”
at the discretion of the Tribunal,8 and at Nuremberg, they had been excluded from the prosecution’s evidentiary archives.9 Moreover, in a departure from the procedural standards that are generally applicable in criminal trials, neither tribunal was bound by technical rules of evidence.
But the situation could have been considerably worse for the defendants. A mere 14 months before the IMT began, Winston Churchill, theBritish Prime Minister, and Franklin Roosevelt, the US President, had tentatively agreed to the summary execution of thousands of suspected war
criminals. In the end, it was decided instead to hold trials for what, bycomparison, would be a relatively modest number of defendants.10
In his opening statement at Nuremberg, Robert Jackson, the American Chief of Counsel, sought to refute claims of victors’ justice by emphasizing that prosecuting Nazi leaders in court was fairer than simply
having them taken out and shot. Rather than belabour the fact that largescale extrajudicial killing had seriously been considered, Jackson madehis point rather obliquely, albeit with considerable eloquence:[T]hat four great nations, flushed with victory and stung withinjury stay the hand of vengeance and voluntarily submit
their captive enemies to the judgment of the law is one of themost significant tributes that Power has ever paid to Reason.11

Jackson was acutely aware that the IMT was under scrutiny not only on account of its own perceived shortcomings but also out of concernthat its defects could serve to undermine respect for international law itself.12 He took pains to dispel such concerns:
8
9

10

11
12

Ibid., Section III (“Fair Trial for Accused”), Article 9(c).
See Telford Taylor, The Anatomy of the Nuremberg Trials, Alfred A. Knopf, New York,
1992, p. 627.
Though Roosevelt, in October 1944, joined Churchill in initialling the so-called Morgenthau Plan, calling for summary executions, within a month Roosevelt expressed his regret
at having done so and reversed course. Ibid., p. 34. See also Richard H. Minear, Victors’Justice: The Tokyo War Crimes Trial, Princeton University Press, Princeton, 1971, p. 9.
Nuremberg Trial, vol. II, p. 99, see above note 2.
See, for example, Charles E. Wyzanski, “Nuremberg: A Fair Trial? A Dangerous Precedent”, The Atlantic Monthly, April 1946 (available on its web site). Yet, when the trials
were completed, his opinion shifted rather dramatically. See Charles E. Wyzanski, “Nu-Nuremberg Academy Series No. 3 (2020) – page 203

The Tokyo Tribunal: Perspectives on Law, History and Memory

The former high station of these defendants, the notoriety of
their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand fora just and measured retribution, and the unthinking cry forvengeance which arises from the anguish of war. It is ourtask, so far as humanly possible, to draw the line between the
two. We must never forget that the record on which we judge
these defendants today is the record on which history will
judge us tomorrow.13

The official trial transcript indicates that Jackson immediately followed this with what has become one of the most frequently quoted
statements of the Nuremberg trials: “To pass these defendants a poisoned
chalice is to put it to our own lips as well”.14 Yet, in what may come as asurprise to many, he never actually said it.15
By 1 October 1946, the IMT had rendered its verdict. Within days,
the judgment was subject to withering rebuke. The New York Times carried a front-page article on 6 October 1946 under the headline, “TAFTCONDEMNS HANGING FOR NAZIS AS UNJUST VERDICT”.16 In aless strident but similar vein, on 2 October 1946, the Chicago Tribune ranan editorial which asserted: “The truth of the matter is that no one of thevictors was free of the guilt which its judges attributed to the vanquished”.17
The Tokyo Tribunal fared even worse. Almost two months before
the IMTFE officially handed down its judgment, one of the defence counsel, Owen Cunningham, launched a scathing condemnation of the Tribu-

13
14
15

16

17

remberg in Retrospect”, The Atlantic Monthly, December 1946 (also available on its website).
Nuremberg Trial, vol. II, p. 101, above note 2.
Ibid.
See (and listen to) “Robert H. Jackson (1945) Opening Statement”, an audio-visual recording of original IMT film footage, published online by the Robert H. Jackson Center, 2015,at 11:19 to 11:28 mins. of the recording (available at YouTube). For further discussion andconfirmation of the omission, see also John R. Barrett, “No Poisoned Chalice”, The Jackson List, 2013 (available on its web site) (crediting the German film-maker, Ullabritt Horn,with having noticed the discrepancy) (with thanks to John Barrett for having confirmedthis).
See Walter W. Ruch, “Taft Condemns Hanging for Nazis as Unjust Verdict”, The New
York Times, 6 October 1946, p. 1 (available on its “TimesMachine”).
As reported by Quincy Wright, “The Law of the Nuremberg Trial”, in The American Journal of International Law, 1947, vol. 41, no. 1, p. 45.

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nal.18 He presented a paper at an American Bar Association meeting heldin Seattle on 7 September 1948, entitled “The Major Evils of the Tokyo
Trial”, in which he publicly announced that Justice Pal had “already completed his dissension judgment, recommending dismissal of all counts andacquittal of all defendants”.19 Moreover, he claimed that the object of thetrial was vengeance, vindication and propaganda; that the prosecuting nations failed to show that they themselves were free from having committed some of the same crimes charged against the Japanese; that the accused had not been afforded a fair trial; that evidence had been suppressed;that defence witnesses had been abused; that certain judges had been absent from the Tribunal for months at a time; that aggressive war had neverbeen adequately defined nor made punishable, and that, therefore, the Tokyo Charter was an example of ex post facto law.20 In retaliation for suchconduct, Cunningham was summarily barred from the proceedings.21
The 11 justices at Tokyo were responsible for writing six separate
opinions. Nine of the justices signed on to the majority opinion,22 which
was read aloud in open court beginning on 4 November 1948. It took overa week before the reading was concluded.23
Shortly after the IMTFE rendered its verdict, a collective defence
appeal was filed. It listed various objections to the judgment, including
unfairness of the trial procedure itself, irregularities with respect to thetype of evidence which was admitted, and the conclusions which weredrawn from such evidence.24 The petition cautioned General MacArthurthat the “verdict looks too much like an act of vengeance to impress theworld with our love of justice and fair play”.25
MacArthur denied the appeal with both grandiloquence and mixed
feelings:

18

19
20
21
22
23
24

25

Arnold C. Brackman, The Other Nuremberg, The Untold Story of the Tokyo War Crimes
Trials, William Morrow and Co., New York, 1987, p. 369.
Ibid.
Ibid.
Ibid., p. 370.
Minear, 1971, p. 161, above note 10.
Brackman, 1987, p. 372, above note 18.
Defense Appeal signed by Ben Bruce Blakeney on behalf of all defence counsel, 21 November 1948, reproduced in Minear, 1971, pp. 204-08, above note 10.
Ibid., p. 207.

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No duty I have ever been called upon to perform in a long,
public service replete with many bitter, lonely, and forlorn
assignments and responsibilities is so utterly repugnant to me
as that of reviewing the sentences of the Japanese war criminal defendants by the International Military Tribunal for the
Far East […]It is inevitable that many will disagree with the verdict;even the learned justices who composed the tribunal were
not in complete unanimity, but no mortal agency in the present imperfect evolution of civilized society seems more entitled to confidence in the integrity of its solemn pronouncements. If we cannot trust such processes and such men, we
can trust nothing. I therefore direct the Commanding Generalof the Eighth Army to execute the sentences as pronounced
by the tribunal. In doing so, I pray that an Omnipotent Providence may use this tragic expiation as a symbol to summon
all persons of good will to the realization of the utter futilityof war – the most malignant scourge and greatest sin of
mankind – and eventually to its renunciation by all nations.26

10.3. The Ex Post Facto Issue: The IMT Makes Its Peace with Crimes
Against Peace
Though Nuremberg and Tokyo both included crimes against peace as thecentrepiece of the indictments, it was a crime which many argued had notbeen sufficiently recognized in international law so as to support criminal
prosecutions. Consequently, it was strenuously contended that it represented an application of ex post facto law, in contravention of the fundamental principle of nullum crimen sine lege.
26

Ibid., p. 167. In the 1950s, MacArthur gave a series of speeches addressing the recklessness of war, including one in New York City, where he railed against what he perceived as
his own country’s wasteful and dangerous build-up of military assets:
Our swollen budgets constantly have been misrepresented to the public. Our government has kept us in a perpetual stat of fear – kept us in a continuous stampede of patriotic fervor – with the cry of grave national emergency. Always there has been someterrible evil at home or some monstrous foreign power that was going to gobble us up
if we did not blindly rally behind it by furnishing the exorbitant funds demanded. Yet,in retrospect, these disasters seem never to have happened, seem never to have beenquite real.
Edward T. Imparato, General MacArthur Speeches and Reports 1908–1964, Turner, Nashville, 2000, p. 230 (from a public address at the annual stockholders’ meeting of the Sperry
Rand Corporation, 30 July 1957, New York).

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Insofar as the IMT judgment preceded that of the IMTFE by two
years, it was Nuremberg which did the ‘heavy lifting’ in terms of addressing and analysing the ex post facto question. The Tokyo Tribunal did little
more than rubber-stamp Nuremberg’s conclusions on the matter. Thus, theTribunals’ rationale for having countenanced charges for crimes against
peace cannot be understood without reference to Nuremberg.
When Robert Jackson took to the podium at the IMT on 21 November 1945, he very quickly made a point of offering a justification for theprosecution of crimes against peace:
The common sense of mankind demands that law shall notstop with the punishment of petty crimes by little people. It
must also reach men who possess themselves of great power
and make deliberate and concerted use of it to set in motion
evils which leave no home in the world untouched.27

His words, though poignant, seem to belie a sensitivity to the potential shortcomings of relying solely on the Kellogg-Briand Pact (Treaty for
the Renunciation of War as an Instrument of National Policy) or othernon-binding international conventions for the proposition that waging aggressive war was already recognized as criminal prior to Nuremberg. Whyelse would he lead the argument for criminalizing aggressive war-making
by pointing in the direction of natural law, referring to the “common senseof mankind”? One might be forgiven for suspecting that if Jackson was
thoroughly convinced that crimes against peace indisputably existed within positive international law prior to Nuremberg, he might have offeredevidence of such positive law right at the outset. Indeed, in his later argument before the Tribunal, Jackson as much as admitted that Nuremberg
was, of necessity, charting new territory in the law. After methodicallytracing the detailed history of various conventions characterizing aggression as a crime, he concluded his argument with an appeal to the adaptability of law:
But if it be thought that the Charter, whose declarations concededly bind us all, does contain new law I still do not shrink
from demanding its strict application by this Tribunal […]It is true of course, that we have no judicial precedent
for the Charter. But international law is more than a scholarly collection of abstract and immutable principles. It is an
27

Nuremberg Trial, vol. II, p. 99, above note 2.

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outgrowth of treaties and agreements between nations and of
accepted customs. Yet every custom has its origin in some
single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every
principle of growth for international law, we cannot denythat our own day has the right to institute customs and toconclude agreements that will themselves become sources ofa newer and strengthened international law […] The law, so
far as international law can be decreed, had been clearly
pronounced when these acts took place. Hence, I am not disturbed by the lack of judicial precedent for the inquiry it is
proposed to conduct.28

The argument that Jackson himself felt that the IMT was applying
law retroactively finds further support in a letter he wrote in early 1949
addressing the jurisprudence of Nuremberg. In it, Jackson confessed “I am
not disposed to deny that it was a substantial break with the past and may
have been applied somewhat retroactively”.29
In its judgment, the IMT addressed the ex post facto question headon, holding that because the defendants must have known that in attacking
neighbouring States they were doing wrong, they deserved to be punished.
The IMT pointed to the Kellogg-Briand Pact30 as being of paramount importance in establishing that aggressive war-making was already a crime
in international law prior to World War II:
In the opinion of the Tribunal, the solemn renunciation of
war as an instrument of national policy necessarily involves
the proposition that such a war is illegal in international law;and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in sodoing. War for the solution of international controversies undertaken as an instrument of national policy certainly in-

28
29

30

Ibid., p. 147 (emphasis added).
See Jackson’s letter to his intended biographer, Eugene C. Gerhart, 17 March 1949, available on the Jackson List’s web site (with thanks to Professor John Q. Barrett for its on-line
publication).
The Kellogg-Briand Pact, signed at Paris on 27 August 1928, also referred to as ‘The Pactof Paris’, provides in Article I: “The High Contracting Parties solemnly declare in thenames of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another” (https://www.legal-tools.org/doc/998ff6/).

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cludes a war of aggression, and such a war is therefore outlawed by the pact.31

10.4. The IMTFE Plays ‘Follow the Leader’
The IMTFE was given the unique opportunity to ‘push the envelope’ withrespect to holding illegal war-makers directly responsible for the crime ofmurder. The linking of illegal war-making with murder rested on thepremise that if a war is unlawful, then those who kill in furtherance of it
are unlawful belligerents who cannot claim to be shielded by the laws ofwar, which apply only to lawful combatants.
Though the rationale linking the illegality of war to the crime ofmurder did not find its way into the indictments at Nuremberg, Tokyo wasa different matter. Because of continuing concerns regarding the ex post
facto criminalization of crimes against peace, when the IMTFE indictments were drawn up, it was felt that the ‘chain of crimes’ theory (that is,
linking illegal war to the crime of murder)32 might serve as an alternate
route to achieving convictions. 33 The Tokyo indictments, therefore, included, from Articles 39 through 52, the charge of unlawful killing andmurder of members of naval and military forces, as well as civilians anddisarmed soldiers.
The majority opinion of the Tokyo judges, not wishing to deviate
from the jurisprudence of Nuremberg, circumvented the issue.34 With respect to the counts of the indictment which included murder (as a consequence that the war was aggressive, and therefore, illegal), the majority
concluded:
No good purpose is to be served, in our view, in dealing withthese parts of the offences by way of counts for murder when

31

32

33
34

Nuremberg Trial, vol. I, p. 220, see above note 2. In light of the IMT’s finding that a war
in violation of the Kellogg-Briand Pact amounted to aggressive war, would such a precedent apply to the US-led incursion in Iraq in 2003, given that the US and Iraq were bothHigh Contracting Parties to the Pact? See Treaties in Force: A List of Treaties and Other
International Agreements of the United States in Force on January 1, 2003, US Department of State, 2003, p. 458.
Kirsten Sellars, ‘Crimes against Peace’ and International Law, Cambridge University
Press, Cambridge, 2013, p. 129.
Ibid., pp. 197-201.
Ibid., p. 250.

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the whole offence of waging those wars unlawfully is put inissue upon the counts charging the waging of such wars.35

Hence, in absorbing the charges of murder into the charges of waging war,
the IMTFE deemed it ‘unnecessary’ to make an independent determination relating to the charges of murder as such.36
The IMTFE made no pretence of independently addressing the expost facto issue. After first stating that the Tribunal was bound, pursuant
to the terms of its Charter, to reject such defences, it opined that it was infull agreement with the logic of the Nuremberg judgment in this regard37
The majority judgment of the IMTFE summarily concluded: “Wars of aggression having been proved, it is unnecessary to consider whether they
were also wars otherwise in violation of international law or in violationof treaties, agreements and assurances”.38
10.5. The Ex Post Facto Issue: Not All Are Convinced, Nor Should
They Be
The assertion that the Kellogg-Briand Pact had established aggressive
war-making as a punishable crime in international law was subject to vigorous counter-argument at Nuremberg and Tokyo, not only by defence
counsel,39 but also in the excruciatingly detailed refutation set forth in Justice Pal’s dissenting opinion at the IMTFE.40 With reference to the provisions of the Pact, Justice Pal opined, among other things, that:
35

36
37
38
39

40

See International Military Tribunal for the Far East, Judgment of 4 November 1948(‘IMTFE Judgment’), pp. 48452-53 (https://www.legal-tools.org/doc/8bef6f/). The full indictment is available in the ICC Legal Tools Database, and in Shin’s Archive, 17 December 2016.
Sellars, 2013, p. 250, see above note 32; IMTFE Judgment, p. 48453, see ibid.
Ibid., p. 48439.
Ibid., p. 49772.
See, for example, the Motion Adopted by All Defense Counsel of the IMT arguing the expost facto issue, filed with the Nuremberg Tribunal on 19 November 1945 (and rejected by
the Tribunal two days later on the grounds that, insofar as it was a plea to the jurisdictionof the Tribunal, it was in conflict with Article 3 of the Charter), Nuremberg Trial, vol. I, pp.
168-70, see above note 2. Similar defence arguments were rejected by the Tokyo Tribunal.
See IMTFE Judgment, above note 35, pp. 48436-40.
See Justice Pal’s nearly 700-page dissent from the IMTFE Judgment, International Military Tribunal for the Far East Dissentient Judgment of Justice Pal, Kokusho-Kankokai,
Tokyo, 1999 (calling for the acquittal of all IMTFE defendants) (‘Justice Pal’s Dissenting
Opinion’) (https://www.legal-tools.org/doc/38eba7/). For a brief review of Pal’s dissenting
opinion from the perspective of a Japanese scholar, see Kei Ushimura, “Pal’s ‘Dissentient

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Apart from any other consideration, the single fact that war
in self-defense in international life is not only not prohibited,
but that it is declared that each State retains ‘the prerogativeof judging for itself what action the right of self-defense
covered and when it came into play’ is, in my opinion, sufficient to take the Pact out of the category of law.41

Though Justice Pal did not live long enough to see it, he would surely
have been gratified to know that, almost 50 years later, Telford Taylor, alegal scholar and senior assistant to Robert Jackson at Nuremberg, conceded that he himself had come to the same legal conclusion.42
There is a chapter in the legislative history of the Kellogg-Briand
Pact which, had it been better known at the time, may well have been of
more than mere passing interest to defence counsel. Moreover, it is achapter which may be instructive even today as to what it says about treaties which lack appropriate enforcement mechanisms.
It is no secret that when the Pact came up for ratification before theUnited States Senate in January 1929, it was overwhelmingly approved,
by a vote of 85 in favour and only one opposed.43 Yet the details of who
voted against it and, more importantly, his reasons for doing so are notparticularly well known. It is a story which is of interest not only for the
ex post facto question, but also because of its implications for efforts
which are currently underway with respect to more fully and effectively
activating the ICC’s jurisdiction over the crime of aggression.
When the US Senate put the ratification of the Kellogg-Briand Pact
to a vote on 15 January 1929, the lone dissenter was Senator John James
Blaine of Wisconsin.44 He knew that the treaty had no criminal or othermeaningful sanctions in the event of its breach. He also knew that Statessuch as the United Kingdom, France and the United States had qualified

41
42

43

44

Judgment’ Reconsidered: Some Notes on Postwar Japan’s Responses to the Opinion”, inJapan Review, 2007, no. 19, pp. 215-23, published by the International Research Centre
for Japanese Studies, Kyoto.
Justice Pal’s Dissenting Opinion, p. 45, see ibid.
See Taylor, 1992, p. 629, see above note 9 (“Arguments in support of punishing individuals ex post facto for violation of the crime against peace can be made, but, if conducted ona plane devoid of political and emotional factors, will be won by the defense”).
Robert H. Ferrell, Peace in Their Time, The Origins of the Kellogg-Briand Pact, W.W.
Norton & Co., New York, 1952, p. 252.
Ibid.

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their accession with declarations, effectively reserving for themselves theright to use force whenever and wherever, in their sole discretion, they feltthat military defence of their sovereign interests was justified. Because ofthis, Blaine stood on the floor of the US Senate on 9 January 1929 anddecried the fact that “the treaty itself, weighted down by the reservations,contains the fertile soil for all the wars of the future”.45 He boldly predicted:[W]hy, this treaty, sir, is not even a truce. It is the beginningof the most stupendous struggle for world dominion and territorial aggrandizement. The clash may not come in our time,
but this treaty portends an early conflict – the first one acommercial war, the second one none but the Infinite Mind
can contemplate.46

10.6. Jackson at the IMT: The Push for Accountability
Jackson’s impassioned oratory before the Tribunal emphasized, as a matter of paramount importance, that the mere meting out of punishment tothe vanquished was by no means the pre-eminent objective of the trials:
Wars are started only on the theory and in the confidence thatthey can be won. Personal punishment, to be suffered only inthe event the war is lost, will probably not be a sufficient deterrent to prevent a war where the warmakers feel the chances of defeat to be negligible.
But the ultimate step in avoiding periodic wars, which
are inevitable in a system of international lawlessness, is tomake statesmen responsible to law. And let me make clearthat while this law is first applied against German aggressors,
the law includes, and if it is to serve a useful purpose it must
condemn aggression by any other nations, including thosewhich sit here now in judgment.47

He viewed the goal of the proceedings as the establishment of auniversal precedent that would help hold even victors to account. For
Jackson, the real enemy to be vanquished was illegal war-making itself.

45
46
47

Congressional Record of the United States Senate, 9 January 1929, p. 1401.
Ibid., p. 1406.
Nuremberg Trial, vol. II, pp. 153-54, above note 2 (emphasis added).

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10.7. Post-Nuremberg: Optimism, Expectation and Ambivalence
Within a week of the Nuremberg judgment, Jackson submitted a report on
the trials to President Truman. He was keen to point out that, going forward, the ex post facto question would no longer be an issue. Writing as
though the judgment of the IMT had set a binding precedent in international law, he maintained “[n]o one can hereafter deny or fail to know thatthe principles on which the Nazi leaders are adjudged to forfeit their lives
constitute law, and law with a sanction”.48 Yet, as the lack of subsequent
progress in codifying the crime of aggression has shown, he was evidently‘jumping the gun’. For the next 72 years, the crime of aggression wouldfind itself in legal limbo: a crime without an international court of competent jurisdiction and, hence, a crime without the penal sanction which
Jackson had so confidently touted.
In November 1946, Francis Biddle, who had served as the US judge
at Nuremberg, also wrote to Truman to weigh in on the trials, recommending further action to assure that the IMT’s judgment would be recognized
as authoritative:
The conclusions of Nürnberg may be ephemeral or may besignificant. That depends on whether we now take the next
step. It is not enough to set one great precedent that brands
as criminal aggressive wars between nations. Clearer definition is needed […] In short, I suggest that the time has now
come to set about drafting a code of international criminal
law.49Truman agreed. Consequently, the United States pushed for affirmation of the Nuremberg principles and their codification by the United Nations (‘UN’). The endorsement of the Nuremberg judgment was achievedon 11 December 1946 through the unanimous approval of General Assembly Resolution 95(I). It provided, in this respect, that the General Assembly: “Affirms the principles of international law recognized by theCharter of the Nürnberg Tribunal and the judgment of the Tribunal”.50
48

49
50

Letter from Robert Jackson to President Truman, 7 October 1946 (available on the website of Harry S. Truman Library and Museum).
Ibid.
United Nations (‘UN’), General Assembly, Resolution 95(I), 11 December 1946 (https://www.legal-tools.org/doc/bb7761/); For a discussion of the resolution, see United Nation
Audiovisual Library of International Law, “Affirmation of the Principles of International
Law recognized by the Charter of the Nürnberg Tribunal”, 2008 (https://www.legal-tools.

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The following year, the General Assembly formally directed the International Law Commission (‘ILC’) to formulate the Nuremberg principles and to incorporate them into a draft code of offences against thepeace and security of mankind.51 The formulation of the Nuremberg Principles by the ILC was completed in 1950.52 Among its seven principles
was a listing of the crimes within the Nuremberg Charter. 53 On crimes
against peace, the ILC formulation of principles used language thattracked the Nuremberg Charter definition of the crime almost verbatim.
The ILC began working on a draft code of offences, but it made little real progress on the definition of the crime of aggression. In 1967, theGeneral Assembly authorized a Special Committee on the Question ofDefining Aggression.54 Seven years later, by way of consensus Resolution
3314 (XXIX), the General Assembly adopted the definition of aggression
developed by the Special Committee, but it concerned acts of aggression,
as distinct from the crime itself.55 The newly-minted definition remainedin a legal vacuum, as there was still no international court with jurisdiction over the crime of aggression itself.
When the ILC issued its final Draft Code of Offences in 1996, its
provisions on the crime of aggression bore no resemblance to the 1974
General Assembly definition. Instead, Article 16 of the 1996 Draft Codeprovided merely that “[a]n individual who, as leader or organizer, actively

51

52

53
54

55

org/doc/u9iu1e/). In R. v. Jones [2006] UKHL 16 (appeal taken from the Court of Appeal(Criminal Division), England and Wales) (https://www.legal-tools.org/doc/27fdf0/), theHouse of Lords of the United Kingdom confirmed that the crime of aggression has, at least
since Nuremberg, formed a part of customary international law, citing, among other things,
Resolution 95(I).
See UN General Assembly Resolution 177(II), 21 November 1947 (https://www.legaltools.org/doc/57a28a/).
See Document A/CN.4/34, Report of the International Law Commission on its Second
Session, 5 June to 29 July 1950, in Official Records of the General Assembly, fifth session,
Supplement No.12, Extract from the Yearbook of the International Law Commission, 1950,
vol. II, paras. 95-127 (https://www.legal-tools.org/doc/be570a/).
Ibid.
See UN General Assembly Resolution 2330 (XXII), 18 December 1967 (https://www.
legal-tools.org/doc/e9b6d2/); For a review of the General Assembly’s involvement from1950 onward relative to the question of defining aggression, see Summaries of the Work of
the International Law Commission, Question of defining aggression, 15 July 2015 (https://www.legal-tools.org/doc/wtmgof/).
UN General Assembly, Resolution 3314 (XXIX), Definition of Aggression, 14 December
1974 (https://www.legal-tools.org/doc/752c30/).

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participates in or orders the planning, preparation, initiation, or waging of
aggression committed by a State shall be responsible for a crime of aggression”.56
Although Article 16 specified that the crime of aggression is a leadership crime, it fell short of clarifying what “leader or organizer” or “waging of aggression” means. Given the conspicuous lack of definitional detail emerging from its almost half-century drafting effort, some might reasonably infer a certain collective ambivalence, if not reluctance, on thepart of the ILC towards effectively codifying the crime of aggression.
10.8. The ICC Finally Takes the Baton, a Slippery One
Aggression would not find its way into an operational international criminal code until the adoption of the Rome Statute of the International Criminal Court in 1998, which took effect upon the establishment of the ICC in
2002. Yet even then, the crime was included on only a nominal and as yet
completely unenforceable basis. Although it was listed among the corecrimes over which the ICC ostensibly had jurisdiction, there was a catch.
As a matter of negotiated compromise, it was agreed in Rome that the
Court would not be able to exercise its aggression jurisdiction until andunless further provisions would be adopted, defining the crime and setting
forth the conditions under which the Court could exercise such jurisdiction. 57 There was, of course, no assurance that such further provisions
would ever be adopted.
Despite this indefinite deferral, to their credit, the delegates avoided
burdening the Rome Statute with the ambiguous circularity of the rather
minimalist definition proposed by the ILC. Nonetheless, the decision to
put off activating the Court’s aggression jurisdiction was based more on
Realpolitik than on definitional theory. The permanent members of the
Security Council have uniformly believed that they alone can determine if
there are acts of aggression,58 and they remain unenthusiastic about seeing
an international court with independent jurisdiction over the crime.
56

57

58

Yearbook of the International Law Commission, 1996, vol. II, part 2, pp. 42-43 (https://www.legal-tools.org/doc/bb5adc/).
See Article 5(2) of the Rome Statute of the International Criminal Court (‘Rome Statute’)
prior to being amended in 2010 at the ICC Review Conference (reproduced at p. 3, fn. 1 to
Article 5) (https://www.legal-tools.org/doc/e5faa8/).
The permanent members of the UN Security Council contend that it is their exclusive prerogative under Article 39 of the UN Charter to determine the existence of acts of aggres-Nuremberg Academy Series No. 3 (2020) – page 215

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Whereas Nuremberg and Tokyo laid the foundation for criminalizing wars of aggression, the ICC definition of the crime of aggression, likethe General Assembly Resolution 95(I), speaks in terms of acts of aggression. For purposes of the Rome Statute, as a general matter, the crime ofaggression is limited to:the planning, preparation, initiation or execution, by a person
in a position effectively to exercise control over or to direct
the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes amanifest violation of the Charter of the United Nations.59

The Rome Statute definition then tracks the litany of aggressive acts
enumerated within the General Assembly’s 1974 definition.60 Because theRome Statute definition covers only acts reaching the level of manifest
violations of the UN Charter based on their combined “character, gravity,and scale”, it excludes uses of force that, though not authorized under theCharter, may ultimately be adjudged to be justifiable in the circumstances.
By limiting the scope of criminal culpability to those “in a position effectively to exercise control over or to direct the political or military actionof a State”, it comports with the approach of the Tribunals in not bringing
mid or low-level operatives within the ambit of the crime.
Still, concerning the criminalization of illegal war-making, the legacy of the Tribunals is far from settled. Unlike the ICC’s jurisdiction overwar crimes, genocide and crimes against humanity, its aggression jurisdiction comes with unique restrictions, notwithstanding its entry into force in2018. Unless there is a referral of a situation by the UN Security Council,
States which are not party to the Rome Statute are completely excluded
from such jurisdiction, and States Parties are only subject to it on a purely
voluntary basis.61

59
60
61

sion. On the question of whether Article 39 grants the Security Council an exclusive rightto make such determinations, see Mark S. Stein, “The Security Council, the International
Criminal Court, and the Crime of Aggression: How Exclusive Is the Security Council’sPower to Determine Aggression?”, in Indiana International & Comparative Law Review,
2005, vol. 16, no. 1 (concluding in the negative).
Rome Statute, Article 8bis (as amended) (https://www.legal-tools.org/doc/a87ede/).
Compare ibid. with UNGA, Resolution 3314 (XXIX), above note 55.
For the definition of the crime of aggression and the jurisdictional conditions surrounding
the Court’s exercise of jurisdiction over the crime of aggression and of other crimes generally, see Rome Statute, Articles 8bis, 12, 15bis, and 15ter (as amended), above note 59.
For a discussion of limitations on such jurisdiction and the activation decision itself, see

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If the ideal of “equal justice under law” is to mean anything here,
the ICC’s aggression jurisdiction must be fortified by further ratifications – especially by those States Parties which sat in judgment at Nuremberg and Tokyo or were party to the 1945 London Agreement. In this respect, the message that Harry Truman, the President of the United States,delivered to the General Assembly in October 1946, just three weeks after
the Nuremberg judgment, bears repeating even today:
I remind you that 23 members of the United Nations havebound themselves by the Charter of the Nuremberg Tribunal
to the principle that planning, initiating or waging a war of
aggression is a crime against humanity for which individuals
as well as states shall be tried before the bar of international
justice62

Of these 23 signatories to the London Agreement, only eight havecome forward, as States Parties of the ICC, to ratify the Kampala amendments: Belgium, Croatia, Luxembourg, the Netherlands, Panama, Poland,
Uruguay and the Former Yugoslav Republic of Macedonia. Like the other
29 States Parties who have thus far ratified the aggression amendments,
they have taken an important step in fortifying the crimes against peace
precedent established at Nuremberg.63
By contrast, France and the United Kingdom, which both sat injudgment at Nuremberg and Tokyo and sit as permanent members of the

62

63

Jennifer Trahan, “From Kampala to New York—The Final Negotiations to Activate theJurisdiction of the International Criminal Court over the Crime of Aggression”, in International Criminal Law Review, 2018, vol. 18, no. 2; Claus Kreß, “On the Activation of ICC
Jurisdiction over the Crime of Aggression”, Editorial Comment, in Journal of International Criminal Justice, 2018, vol. 16, no. 1, pp. 1-17; see also Donald M. Ferencz, “Greatest
challenges facing the ICC on crimes of aggression are equality before the law, evidencegathering, and witness protection. Creative solutions which encourage non-ratifiers to ratify may be part of the solution”, Human Rights and International Law ICC Forum, January
2018 (available on its web site).
Harry S. Truman, US President, Address in New York City at the Opening Session of the
UN General Assembly, 23 October 1946 (available on the web site of the Truman Library).
For further discussion of illegal war-making as a crime against humanity, see the web siteof Benjamin Ferencz, the last surviving Nuremberg prosecutor (www.benferencz.org).
The other ratifying States include: Andorra, Argentina, Austria, Belgium, Botswana, Chile,
Costa Rica, Cyprus, Czech Republic, El Salvador, Estonia, Finland, Georgia, Germany,
Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Malta, Portugal, Samoa, San Marino,
Slovakia, Slovenia, Spain, State of Palestine, Switzerland, and Trinidad and Tobago. For
an updated listing of ratifying States, see the web site of The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

UN Security Council, are notably absent from that list.64 Such failure to
ratify the amendments, coupled with the failure of other powerful States
to join the Court (including the three other permanent members of the Security Council), does little to enhance the reputation of Nuremberg or Tokyo as harbingers, along with the UN Charter, of an improved world order
based on equality under the law. Nor does the recent repudiation by theUnited States of the ICC system itself,65 including the unprecedented revocation of the ICC Prosecutor’s US travel visa.66
The three dozen States Parties that have already ratified the Kampala amendments at the time of writing have thereby confirmed their commitment to the principle that statesmen should be held accountable in law
for the “supreme international crime”. Robert Jackson warned that thestandards that Nuremberg had set in criminalizing aggression “will become the condemnation of any nation that is faithless to them”. It is anadmonition that some states apparently take more seriously than others.67
10.9. Final Observations
Among the lessons to be learned from the Kellogg-Briand Pact and theeffort to outlaw illegal war-making is that where law lacks effective,
broad-based, and reliable enforcement, it is undercut in its capacity tosafeguard those who most depend upon it. Dwight Eisenhower and Douglas MacArthur each saw this clearly. At Tokyo, MacArthur had called forthe renunciation of war by all nations. Eisenhower, as US President, haddeclared, “[I]n a very real sense, the world no longer has a choice between
64

65

66

67

See Owen Bowcott, “ICC crime of aggression comes into effect without key signatories”,
The Guardian, 17 July 2018 (available on its web site) (quoting a Foreign Office spokesperson as having said, “The UK has no plans to ratify the crime of aggression amendments.
We believe that the UN Security Council bears the main responsibility for maintaining international peace and security, and should be the primary body to determine when an act ofaggression has occurred”).
See the 15 March 2019 statement of US Secretary of State, Michael R. Pompeo, threatening economic sanctions and denial of visas for ICC staff involved in investigating possible
crimes committed by US or allied personnel in Afghanistan (available on the web site of
the US State Department). See also the anti-ICC remarks of the former US National Security Advisor, John Bolton, made on 10 September 2018 to the Federalist Society (“We will
let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead tous”).
“U.S. revokes ICC prosecutor's entry visa over Afghanistan investigation”, Reuters, 4April 2019 (available on its web site).
Letter from Robert Jackson to President Truman, 7 October 1946, see above note 48.

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10. Nuremberg, Tokyo and the Crime of Aggression:
An Intertwined and Still Unfolding Legacy

force and law. If civilization is to survive, it must choose the rule oflaw”.68
In an ironic twist, when Frank Kellogg was awarded the Nobel
Peace Prize in 1929, he seemingly downplayed the rule of effective enforcement of international law in favour of the court of public opinion. In
his acceptance speech, he observed:
I know there are those who believe that peace will not be attained until some super-tribunal is established to punish theviolaters of such treaties, but I believe that in the end theabolition of war, the maintenance of world peace, the adjustment of international questions by pacific means will
come through the force of public opinion, which controls nations and peoples - that public opinion which shapes our destinies and guides the progress of human affairs.69

By contrast, former Reichsmarschall Hermann Göring, the lead defendant at Nuremberg, held a rather different view of public opinion. Less
than six months before he was sentenced to death by the IMT, Göring wasinterviewed in his jail cell, from where he candidly explained how easily
the masses are manipulated into supporting the war aims of political elites:
Naturally, the common people don’t want war; neither in
Russia nor in England nor in America, nor for that matter inGermany. That is understood. But, after all, it is the leadersof the country who determine the policy and it is always asimple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament, or a Communist dictatorship. […] voice or no voice, the people canalways be brought to the bidding of the leaders. That is easy.
All you have to do is tell them they are being attacked anddenounce the pacifists for lack of patriotism and exposing

68

69

Dwight D. Eisenhower, “Statement by the President on the Observance of Law Day”, 30
April 1958 (available on the web site of Gerhard Peters and John T. Woolley, The American Presidency Project).
He added: “I do not envisage the signs of the time as foretelling another war”. See FrankB. Kellogg’s acceptance speech on the occasion of the award of the Nobel Peace Prize inOslo, 10 December 1930 (available on the web site of the Nobel Foundation). As to Kellogg’s ability to discern the signs of the times, it may be of interest to note that five years
later, he was further quoted as having declared that war in Europe was “inconceivable”.
See “WAR ‘INCONCEIVABLE’, KELLOGG HOLDS HERE”, The New York Times, late
edition, 25 September 1935, p. 15 (available on its “TimesMachine”).

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the country to danger. It works the same way in any country.70

Göring’s assessment goes to the very heart of why so many have laboured so long to assure that political and military leaders are held to account for dragging nations and peoples into conflict in violation of international law.
It is not hyperbolic to suggest that today’s ICC system owes its existence to principles of law directly traceable to Nuremberg.71 It was a tribunal which, in the words of Robert Jackson, was intended to set a legal
precedent whereby international law would be put “squarely on the side ofpeace”.
The homage to “Reason” articulated in Jackson’s opening statement
has come to form an integral and compelling part of the lore and legacy ofNuremberg. His words resonate with all who work to protect the weakfrom the powerful through the application of law.72 Yet the fact that thepower of the IMT and IMTFE Charters was not brought to bear equally
upon victors and the vanquished alike remains among the greatest pointsof criticism.73
It is axiomatic that the selective application of universal principlesof law is inevitably followed by charges of hypocrisy. The current failure
70

71

72

73

G.M. Gilbert, Nuremberg Diary, A Signet book, New American Library, 1961 [1947], pp.
255-56 (emphasis in the original).
For a review of developments from Nuremberg through the planning for the trial of Saddam Hussein, see Robert H. Jackson Center, “The Influence of the Nuremberg Trial on International Criminal Law” (undated) (https://www.legal-tools.org/doc/lub803/).
The struggle is by no means a new one. The preamble to the Code of Hammurabi (on display at the Louvre Museum in Paris) references that this ancient set of laws was given “sothat the strong shall not harm the weak”. See Ancient History Sourcebook: Code of Hammurabi, c. 1780 BCE, L.W. King (trans.) (available on the web site of Fordham University).
Perhaps nowhere is the irony of this dichotomy seen more clearly than in the juxtapositionof three nearly simultaneous events. The London Agreement was signed on 8 August 1945,
authorizing prosecution of Nazi leaders for crimes against peace, war crimes, and crimes
against humanity. It also happened to be the day on which Harry S. Truman, as Presidentof the United States, signed the bill by which the US became the first country to ratify the
UN Charter, the preamble of which expressed a solemn determination “to save succeeding
generations from the scourge of war”. Yet, before the sun had set that very day in Washington or London, an American B-29 Superfortress bomber carrying the “Fat Man” plutonium bomb had already lifted off of a runway on the Pacific island of Tinian en route to
obliterating the city of Nagasaki.

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10. Nuremberg, Tokyo and the Crime of Aggression:
An Intertwined and Still Unfolding Legacyof those nations which sat in judgment at Nuremberg and Tokyo to takethe yoke of the law upon themselves may be seen by some as a stain on
the Tribunals’ legacy, but the stain is more so on the reputation of such
States themselves. It presents an ongoing reminder that the rule of law
which is preached by powerful States continues to be very different thanthat which they themselves accept to be bound by.
At the very least, States which are reluctant to expose their national
leaders to the aggression jurisdiction of the ICC could incorporate thecrime within their own national criminal codes. 74 Such domestication
would send a signal that they do not consider themselves to be wholly
above the laws proscribing the illegal use of force in global affairs. Moreover, it would provide at least a theoretical basis for ending pervasive
double standards which discriminate against soldiers in favour of politicians. If military personnel can be prosecuted for war crimes, why should
the politicians who send them out to fight and die remain completely
above the law for the far greater crime of illegal war-making itself?
Despite the shortcomings of the Tribunals and the ICC itself, they
form part of a continuum of twentieth- and twenty-first-century efforts
trending, however imperfectly, in the direction of replacing the law offorce with the force of law. Such evolution has already occurred with respect to the establishment of systems of enforceable domestic laws in virtually all well-developed societies, and for good reason: protection of human rights depends on deterrence of human wrongs.
Göring reputedly once wrote: “War is like a football game. Whoever loses gives his opponent his hand, and everything is forgotten”.75 If ever that was true, the judgment at Nuremberg was a critical turning point in
the process of relegating such thinking to the trash heap of history. Despite its limitations, the recent activation of the ICC’s aggression jurisdiction is a clear affirmation that the promise of Nuremberg has certainly not
been forgotten by those who wish to see a more humane world under therule of law.

74

75

For a discussion of the subject of State domestication of the crime of aggression, includingreference to states which have already done so, see Astrid Reisinger Coracini, “(Extended)
Synopsis: The Crime of Aggression under Domestic Criminal Law”, in Kreß and Barriga(eds.), 2017, pp. 1038-55, see above note 4.
Paul Roland, The Nuremberg Trials, The Nazis and Their Crimes Against Humanity, Arcturus, London, 2012, p. 37.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Two years after the Nuremberg judgment, and half a world away,
Justice Pal raised a stark question in his dissent at Tokyo. It is one which
may have been on the minds of many – particularly those who had experienced the unimaginable destruction wrought by nuclear weapons or by theinescapable infernos spawned by the firebombing of civilian populations.76 “The real question”, he asked, is “can mankind grow up quickly
enough to win the race between civilization and disaster?”.77
A full 70 years on, the answer to his question remains precariously
illusive.

76

77

The American General, Curtis LeMay, in defending the use of the atomic bomb, boasted:“We scorched and boiled and baked to death more people in Tokyo on that night of March
9-10 [1945] than went up in vapor at Hiroshima and Nagasaki combined”. See Nicholas D.
Kristof, “Tokyo Journal; Stoically, Japan Looks Back on the Flames of War”, The New
York Times, 9 March 1995, p. 4 (available on its “TimesMachine”).
Justice Pal’s Dissenting Opinion, above note 40, p. 700.

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11______
Substantive Law Issues in the Tokyo Judgment:
From Facts to Law?
Marina Aksenova*
11.1. Introduction
Back in 1950, one of the contemporary scholars of the International Military Tribunal for the Far East (‘IMTFE’ or ‘Tokyo Tribunal’) wrote:[T]he unwieldy mass of the majority judgment as a whole, tosay nothing of the dissenting opinions, is an especial pity
under the circumstances, for its sheer bulk precludes reproduction and makes it impossible for the Tribunal’s arguments
and conclusions of law ever to be textually available to theinternational legal world […].1

It is clear that the problem of accessibility no longer exists as technology has enabled access to the relevant material. The length of the Tokyo judgment was unprecedented only if compared with its Nuremberg
counterpart – the Tokyo judgment exceeds 1,000 pages while the Nuremberg one is less than 200 pages. The volume is, however, not unusual for
modern international criminal law: one of the last judgments rendered by
the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)
before its closure was in the Mladić case. It is 2,526 pages long and consists of five volumes.2 What makes the Tokyo judgment truly stand out is

*

1

2

Marina Aksenova is a lawyer specializing in international criminal and comparative criminal law. Ms. Aksenova graduated with honours from the International University in Moscow. She holds an LL.M. in Public International Law from the University of Amsterdam
and an M.Sc. in Criminal Justice and Criminology from the University of Oxford. Dr.
Aksenova defended her Ph.D. entitled “Complicity in International Criminal Law” in 2014
at the European University Institute, in Florence. Prior to joining the IE Law School, she
was as a postdoctoral research fellow at the Centre of Excellence for International Courts(iCourts), Faculty of Law, University of Copenhagen.
Gordon Ireland, “Uncommon Law in Martial Tokyo”, in Year Book of World Affairs, 1950,
vol. 4, p. 63.
International Criminal Tribunal for the former Yugoslavia (‘ICTY’), Prosecutor v. Mladić,
Trial Judgment, 22 November 2017, IT-09-92-T (https://www.legal-tools.org/doc/96f3c1/,

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The Tokyo Tribunal: Perspectives on Law, History and Memory

not its length, but its fact-based methodology (also adopted by the International Military Tribunal (‘IMT’) at Nuremberg), whereby the judges
discussed at length the circumstances of Japan’s military domination andaggression,3 but devoted remarkably little space to the individual contribution of each of the accused.4 The section of the judgment dealing withindividual verdicts constitutes less than five per cent of the entire judgment.
What explains such an approach at Tokyo? Admittedly, part of thereason was the desire of the Tokyo judges to collectively attribute guilt tohigh-ranking defendants.5 The other explanation, which is not mutually
exclusive with the first one, was the lack of legal vocabulary and pertinent
legal structures that could serve as a basis for the factual analysis in the
judgment. While modern international criminal law developed a highly
technical and often confusing language to describe the modes of liability,
defences, substantive crimes, and, to a lesser extent, sentencing considerations, the Nuremberg and Tokyo judges operated in a legal vacuum.6 The
Nuremberg and Tokyo Charters were the products of a political compromise between the Allied powers. It was not a given that these trials would
even occur in the first place.7 The judges therefore faced a challenging
task of creating new approaches to prosecuting mass atrocities on an unmatched scale. They did not have the option of falling on the formulaic
language widely used in modern international criminal law. The question
looms as to whether the fact-based approach of Tokyo has any legal precedential value for contemporary jurists.

3
4

5

6

7

https://www.legal-tools.org/doc/f8f51c/, https://www.legal-tools.org/doc/e6f43e/, https://www.legal-tools.org/doc/e8792f/).
Ireland, 1950, p. 61, see above note 1.
Kai Ambos noted that “the Nuremberg approach can be called pragmatic rather than dogmatic”. See Kai Ambos, “Individual Criminal Responsibility in International Criminal Law:
A. Jurisprudential Analysis – From Nuremberg to The Hague”, in Gabrielle Kerk McDonald and Olivia Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law: The Experience of National and International Courts, Volume I Commentary, Kluwer Law International, The Hague, 2000, p. 8.
Marina Aksenova, Complicity in International Criminal Law, Hart Publishing, Poland,
2016, pp. 53 ff.
Solis Horwitz, “Document 465: The Tokyo Trial”, in International Conciliation, 1950, vol.
28, pp. 475–540.
See Richard Overy, “The Nuremberg trials: international law in the making”, in Philippe
Sands (ed.), From Nuremberg to The Hague: The Future of International Criminal Justice,
Cambridge University Press, Cambridge, 2003.

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11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law?

This chapter answers this question in the positive by looking at theTokyo judgment through the lens of ‘constructed temporality’, which invites the reader to view international criminal law not as a linear exercise,but rather as a ‘puzzle’ with various points of reference grounded in different interconnected and mutually enriching moments in time.
The traditional understanding of the evolution of international criminal law is that it emerged in Nuremberg,8 was subsequently applied inTokyo, and was then codified to some extent by the International Law
Commission, which adopted the Nuremberg Principles in 19509 and thenstarted its work on the draft Code of Crimes against the Peace and Security of Mankind (‘Draft Code’).10 There was a legal vacuum until the 1980s
when the work on the Draft Code was resumed. This was followed by the
resurgence of international criminal law in the 1990s with the establishment of the ad hoc tribunals. The early 2000s were marked by the firstyears of the operation of the International Criminal Court (‘ICC’) – thepermanent body tasked with prosecuting mass atrocities. By then, international criminal law had reached a stage of certain maturity, accompanied
by a number of legitimacy and enforcement challenges, which can be perceived either as ‘growing pains’ of the discipline or as a threat to its survival, depending on the point of view of the observer. Such a linear narrative, dominant in the discussions of international criminal law, dovetails
the principle of legality in a sense that it tracks down the development of
the body of law and its incorporation in the work of the relevant institutions.
While acknowledging this linear narrative, this contribution suggests that alternative narratives are also possible and desirable in order toachieve a better understanding of the field. One may equally argue thatthe linear progression of international criminal law is nothing more thanan illusion or a constructed idea. This is the reason why temporality is
8

9

10

Some might argue that the origins of international criminal law go back in time to preNuremberg. See Morten Bergsmo, CHEAH Wui Ling, SONG Tianying and YI Ping (eds.),
Historical Origins of International Criminal Law, Volume 1, Torkel Opsahl Academic
EPublisher, Brussels, 2014 (https://www.legal-tools.org/doc/6a26c8/).
Adopted by the International Law Commission at its second session in 1950, Yearbook of
the International Law Commission, 1950, vol. II (https://www.legal-tools.org/doc/brq89g/,
https://www.legal-tools.org/doc/9c9ro7/, https://www.legal-tools.org/doc/kug9u3/).
Adopted by the Commission at its sixth session, in 1954, Yearbook of the International
Law Commission, 1954, vol. II (https://www.legal-tools.org/doc/114616/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

viewed as a ‘constructed’ concept in this chapter. It is plausible to suggestthat the discipline moves in circles – taking a leap forward and then retracting to the state of affairs that existed before.
Now, it is clear that this conceptualization cannot exist in a vacuum
and must be measured against particular facts and events. The view
adopted in this chapter is that the establishment of the Nuremberg and Tokyo Tribunals, the creation of the ad hoc tribunals and the ICC were all
points in time when international consensus was reached as to the need to‘do something about’ mass atrocities. It is equally important to know thatpolitical and international considerations halted the development of thediscipline at many other points in time. For instance, in the 1950s and1960s, the climate of accountability for the crimes committed during
World War II was overshadowed by the desire, which accumulated at aninternational level, to forge another consensus on the alignment of States’
positions along the Cold War divide.11 It is also possible to see that presently, international law is in a phase of ‘backtracking’ as it struggles tofend off the mounting criticism of its cost, ineffectiveness and lack of legitimacy.
This chapter therefore argues that one can conceptualize international criminal law as developing in cycles, each adding a layer of complexity and understanding to this constantly evolving discipline. However,
the evolution is by no means linear, rather each moment in time when international criminal law takes a leap forward or backwards is defined by
the accumulation of political will at the level of States, institutions andindividual actors. The lens of ‘constructed temporality’ thus creates a narrative for this contribution. The purpose is not, however, to explore thepolitical dimension of international criminal law, but rather to argue thatthe factual approach adopted in Tokyo is not prohibitive to it being thesource of further development for international criminal law.
If one looks at the Tokyo judgment from a purely legalistic perspective, it is easy to see how the lack of legal definitions as well as the perceptions of the lack of objectivity can be prohibitive to its relevance inmodern international criminal law. It appears, however, that the value of
the Tokyo judgment extends beyond the provision of legal definitions as
such; rather, the judgment marks a point in time when certain consensus
11

Devin O. Pendas, “Seeking Justice, Finding Law: Nazi Trials in Postwar Europe”, in Journal of Modern History, 2009, vol. 81, no. 2, pp. 347–68.

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11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law?

was forged as to the prosecutions of the crimes committed in Asia during
the Second World War. This position does not mean the judgment was fully accepted by its contemporaries. For instance, Judith Shklar observedthat the Tokyo Trial was perceived as a ‘bore’ by the Japanese. Unlike its
Nuremberg counterpart, it did not dramatize anything for the local population because the conquerors were behaving as they were expected to behave.12 This reaction does not mean, however, that the judgment and its
findings will not resonate with diverse audiences in the future. If one
adopts the lens of ‘constructed temporality’, one allows for the ‘surprise
re-emergence’ of the Tokyo ideas and concepts at the moment when thecycle of international criminal law picks up again.
Turning to facts and statistics, it is well established that Article 5 of
the Tokyo Charter provided for individual criminal responsibility for thefollowing substantive crimes: crimes against peace, conventional war
crimes and crimes against humanity. The same article specified responsibility of leaders, organizers, instigators and accomplices participating in
the formulation or execution of a common plan or conspiracy to commit
any of the foregoing crimes. The Tokyo indictment contained 55 counts
charging 28 accused with crimes against peace, conventional war crimes,
and crimes against humanity during the period from 1 January 1928 till 2
September1945.13 The Tokyo Tribunal dismissed 45 counts of the indictment, leaving valid only 10, which included the grand conspiracy (count1); waging the war of aggression against China, the United States, theBritish Commonwealth, the Netherlands, France, the Soviet Union andMongolia (counts 27, 29, 31, 32, 33, 35 and 36, respectively); ordering,authorizing and permitting violations of the laws of war (count 54); anddeliberately and recklessly disregarding the legal duty to secure the observance of the laws of war (count 55).
This chapter does not purport to comprehensively discuss each category of crimes adjudicated by the Tokyo Tribunal as it has been exhaustively done elsewhere. 14 It rather focuses on four specific notions discussed at Tokyo by examining them through the lens of ‘constructed tem12

13

14

Judith Nisse Shklar, Legalism: An Essay on Law, Morals and Politics, Harvard University
Press, Cambridge, 1964, p. 181.
The Tokyo War Crimes Trial, vol. 22, p. 48420 (‘Tokyo Judgment’) (https://www.legaltools.org/doc/8bef6f/).
Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal,
Oxford University Press, 2008.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

porality’. These notions are, firstly, the conspiracy and the tension between individual responsibility and collective offending. Secondly, thechapter dwells on the definition of aggression and the right to self-defence
as understood by the Tokyo Tribunal. The third concept is the definition of
specific war crimes, in particular torture. Finally, the fourth notion is superior responsibility and what it means to consciously or recklessly disregard information, which indicates that subordinates are committing
crimes.15 Each section of the chapter draws on the rhetoric of the Tokyo
judgment as well as current debates on the same issue. The purpose is todemonstrate the cyclical nature of international (criminal) law and to establish precedential value of the Tokyo judgment, which is not cancelledout by its highly factual language.
11.2. Conspiracy
The Tokyo indictment charged all of the accused with conspiracy extending over a period of 18 years with the broadly defined objective of securing “the military, naval, political, and economic domination of East Asiaand the Pacific and Indian Oceans, and for all countries and islands therein and bordering thereon”.16 The charge stemmed from Article 5(a) of theCharter, which called for responsibility of those involved in planning,
preparation, initiation, waging aggressive war, and participation in acommon plan or conspiracy for the accomplishment of any of the crimes
mentioned in the same article. The IMTFE interpreted this provision ascovering five different substantive crimes, treating conspiracy and otherways of engagement in criminality as substantive offences. This was alegal solution borrowed from Nuremberg. The Nuremberg indictment
charged conspiracy for an even more extended period of time – startingwith the formation of the Nazi Party in 1919 till the end of the war in
1945. The difference between Nuremberg and Tokyo was that the Nuremberg judges rejected the grand conspiracy charge, while the Tokyo judges
convicted all but one accused – Foreign Minister Mamoru Shigemitsu –15

16

Rome Statute of the International Criminal Court (‘Rome Statute’), 17 July 1998, Article
28 (b)(i) (https://www.legal-tools.org/doc/7b9af9/); and count 55 of the Tokyo Indictment(https://www.legal-tools.org/doc/8bef6f/).
Tokyo Judgment, p. 48421.

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11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law?

under count one as “leaders, organizers, instigators, or accomplices” inthe grand conspiracy.17
Conspiracy was essentially a tool devised to tackle one of the biggest problems of international criminal law of all times: how does one attach individual responsibility for collective offending? In the absence ofdeveloped law on the modes of liability, conspiracy allowed fora factbased approach to charging and giving space to the dominant narrative of
aggression, which overpowered both the Nuremberg and the Tokyo indictments.18 Furthermore, the Tokyo judges chose to treat conspiracy as a
substantive crime, largely following the domestic law approach prominent
in the United States and overlooking the lack of distinction between theforms of participation and the substantive crime at issue. This approach
resulted from the lack of the established legal framework coupled with thedesire to secure convictions even in the absence of a well-defined link between the accused and the specific crimes.
Such liberal deployment of conspiracy attracted contemporary criticism. For instance, Gordon Ireland – a scholar of the IMTFE judgment atthat time – claimed that it was unjust that the Tokyo version of conspiracy
did not allow for the possibility of withdrawal at a later stage – somethingthat the American version of conspiracy guaranteed, thereby protecting
those who changed their minds and decided to renounce criminal participation.19 Judge Henri Bernard from France criticized the deployment ofconspiracy for he considered the classical notion of complicity to be moreaccurate in describing the responsibility of those accused at Tokyo. The
principal perpetrator, according to Judge Bernard, would have been theEmperor – a figure not even charged in the indictment.20 Finally, Judge
Pal in his strong dissent emphasized the fact that conspiracy is not a crime
under international law.21
The dissenting voices were thus strong. They also elucidate how international criminal law has struggled with the problem of attribution of
17

18
19
20

21

Ibid., p. 49773. See Ireland, 1950, p. 80, above note 1; Boister and Cryer, 2008, pp. 21719, see above note 14.
Aksenova, 2016, chap. 1, above note 5.
Ireland, 1950, pp. 81-82, see above note 1.
Dissenting Opinion of Judge Bernard, p. 22, reproduced in part in Ireland, 1950, p. 64, fn.
2, see above note 1 (https://www.legal-tools.org/doc/f4179a/).
Dissenting Opinion of Judge Pal, p. 991, reproduced in part in Ireland, 1950, p. 100, seeabove note 1 (https://www.legal-tools.org/doc/2a3d21/).

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responsibility from the time of its conception. The 1990s and the work of
the ICTY and the International Criminal Tribunal for Rwanda (‘ICTR’)contributed to the development of a more sophisticated body of law dedicated to the modes of liability.22 Both Tribunals paid sufficient attention to
the problem and came up with more legalistic solutions than the Nuremberg and Tokyo Tribunals. The ICTY extensively employed the doctrineof joint criminal enterprise, using it as a form of responsibility throughwhich all of the participants are held accountable as principals provided
they shared a common intent and contributed to the common plan. This
concept attracted significant criticism from both practitioners and scholars.23 The ICTR used the doctrine of extended participation to solve thesame legal problem – extending principal perpetration to those who may
not have been physically involved in the crime but exerted significant influence over its commission.24
The Rome Statute of the ICC contains the most detailed provision
on modes of liability to date – Article 25(3). It is designed to cover various forms of complicity and primary perpetration, introducing concepts
such as indirect perpetration, co-perpetration and contributing to a group
committing crimes. Despite all the details stipulated in the legal text, ICC
judges still often find it challenging to link individual contributions to
specific crimes.25 Moreover, it appears that the gravitas at the ICC is once
again shifting towards appreciating the context of mass offending together
with the individual accountability: the current focus on reparations and theappropriate forms of collective and individual reparations can be seen as
an attempt to acknowledge and remedy to the extent possible the wide-

22
23

24

25

See, for instance, Aksenova, 2016, pp. 81 ff., see above note 5.
Alison Marston Danner and Jenny S. Martinez, “Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law”, inCalifornia Law Review, 2005, vol. 93, pp. 75–169; Gideon Boas, James L. Bischoff and
Natalie L. Reid, International Criminal Law Practitioner Library International Criminal
Procedure, Cambridge University Press, Cambridge, 2007, pp. 17-22; Stephen B. Powles,“Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?”, in Journal of International Criminal Justice, 2004, vol. 2, p. 606.
International Criminal Tribunal for Rwanda (‘ICTR’), Prosecutor v. Gacumbitsi, Appeal
Judgment, 7 July 2006, ICTR-2001-64-A, para. 60 (https://www.legal-tools.org/doc/
aa51a3/).
For more discussion on the use of various modes of liability at the ICC, see Aksenova,
2016, pp. 133 ff., above note 5.

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spread nature of suffering afflicted by mass atrocities.26 Thus, if one looks
at the problem of collective wrongdoing versus personal responsibility
through the lens of ‘constructed temporality’, it becomes obvious that thedilemma still looms large in the field and the new ways of accounting forthe context are being developed. The nuanced forms of participation developed in the 1990s only dealt with the problem in part – namely, thelegality problem. The factual challenges of distilling individual guilt fromthe collective wrongdoing remains one to be examined in more detail by
the scholars and practitioners of international criminal law.27
11.3. The Crime of Aggression
The crime of aggression could be named, with some caution, the oldest
international crime among the three categories of crimes mentioned at Tokyo. The first attempt to invoke it was made in the aftermath of the FirstWorld War. Article 227 of the Versailles Treaty of 1919 called for thecreation of a special tribunal to try the German Kaiser for “a supreme offence against international morality and the sanctity of treaties”. 28 The
former Emperor took refuge in the Netherlands and the trial never took
place. The crime of aggression re-emerged in the work of the United Nations War Crimes Commission, which labelled the aggressive war and its
preliminary and contemporaneous acts as war crimes “in a wider sense”.29
The idea was to hold individually responsible those who launched andwaged the Second World War.
Consequently, Article 6(a) of the Nuremberg Charter and Article 5(a)of the Tokyo Charter defined crimes against peace asplanning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties,
26

27

28
29

See, for instance, the reparation order in the Al Mahdi case engaging closely with the cultural significance of the destroyed buildings. International Criminal Court (‘ICC’), Prosecutor v. Al Mahdi, Appeals Chamber, Judgment on the appeal of the victims against the“Reparations Order”, 8 March 2018, ICC-01/12-01/15 A (https://www.legal-tools.org/doc/
8b92e9/).
This problem is discussed in detail by multiple authors in the forthcoming volume by Marina Aksenova, Elies van Sliedregt and Stephan Parmentier (eds.), Breaking the Cycle ofMass Atrocities: Criminological and Socio-Legal Approaches to International Criminal
Law, Hart, Oxford.
The Treaty of Versailles, 28 June 1919 (https://www.legal-tools.org/doc/a64206/).
Kirsten Sellars, ‘Crimes against Peace’ and International Law, Cambridge University
Press, Cambridge, 2013, p. 60.

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agreements or assurances, or participation in a common planor conspiracy for the accomplishment of any of the foregoing.

The Charters failed to explain in much detail what “waging the war of
aggression” means in practice. Despite the lack of clarity, this class of offences played a central role both in Nuremberg and in Tokyo: count one ofeach respective indictment referred to the broad conspiracy to commit
crimes against peace, whereas count two charged defendants with committing specific offences against peace.30 The IMT judges were not persuaded by the over-expansive conspiracy charge. 31 Continental lawyers
rejected the idea of conviction without proof of the specific crimes perpetrated by the defendant.32
Despite the failure of the grand conspiracy charge, the IMT called
the initiation of a war of aggression not just an international offence, but“the supreme international crime differing only from other war crimes inthat it contains within itself the accumulated evil of the whole”. 33 The
dominant role of this charge in the case in Nuremberg is evident from thejudges’ treatment of the ex post facto challenge raised by the defence. The
Tribunal found that the maxim nullum crimen sine lege was observed fortwo main reasons: firstly, the defendants must have known that they are
acting in violation of international law by engaging in the war of aggression, and, secondly, recourse to war was already expressly renounced by
the Kellogg-Briand Pact at Paris in 1928.34 However, this reasoning of the
IMT is flawed because the 1928 Paris Pact had not intended to give rise to
individual criminal responsibility.
Later, in proving the validity of the prohibition of the war of aggression, the prosecution in Tokyo relied most heavily on Article 1 of the
Kellogg-Briand Pact of 1928:
The High Contracting Parties solemnly declare in the namesof their respective peoples that they condemn recourse to
30

31
32
33
34

International Military Tribunal (Nuremberg) Judgment and Sentences, reprinted in American Journal of International Law, 1947, vol. 41, p. 186 (‘Nuremberg Judgment’); see alsoTokyo Judgment, p. 48421.
Nuremberg Judgment, p. 222.
Overy, 2003, p. 19, above note 7.
Nuremberg Judgment, p. 186.
Ibid., pp. 217-218. See also the General Treaty for the Renunciation of War of 27 August
1928 (https://www.legal-tools.org/doc/396040/).

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war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

The prosecution submitted that by 1928, most civilized nations had
established the illegality of war as a positive rule of international law.35
The majority declared that it is bound by the law of the Charter and referred to the Nuremberg IMT judgment in addressing the defence’s expost facto challenge:
The maxim ‘nullum crimen sine lege’ is not a limitation ofsovereignty but is in general a principle of justice. To assertthat it is unjust to punish those who in defiance of treaties
and assurances have attacked neighboring states without
warning is obviously untrue for in such circumstances the attacker must know that he is doing wrong, and so far from it
being unjust to punish him, it would be unjust if his wrong
were allowed to go unpunished.36

As it turned out, defining aggression was not easy. The prosecutionin Tokyo, towards the end of the trial, backed away from providing such a
definition and, in a typical – for that period of the development of international criminal law – manner, adopted a fact-based approach. The prosecution clarified that what matters was the essence of the crime of aggression, which rested in complete domination of a foreign country.37 The majority followed suit and did not try to come up with a specific definition.38
The IMTFE, for instance, held:
The Tribunal is further of opinion that the attacks which Japan launched on 7th December 1941 against Britain, theUnited States of America and the Netherlands were wars of
aggression. They were unprovoked attacks, prompted by thedesire to seize the possessions of these nations. Whatever
may be the difficulty of stating a comprehensive definition of“a war of aggression,” attacks made with the above motive
cannot but be characterised as wars of aggression.39

35
36
37
38
39

Boister and Cryer, 2008, p. 124, above note 14, citing Elizabeth S. Kopelman (n. 80).
Tokyo Judgment, p. 48438.
Boister and Cryer, p. 122, see above note 14.
Ibid.
Tokyo Judgment, p. 49584.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

It is noteworthy that the defence in Tokyo raised an important selfdefence challenge, arguing that Japan had the right to invoke self-defence
under the terms of the Kellogg-Briand Pact. The majority disagreed, stating that:
Under the most liberal interpretation of the Kellogg-Briand
Pact, the right of self-defense does not confer upon the State
resorting to war the authority to make a final determination
upon the justification for its action. Any other interpretation
would nullify the Pact.40

Judge Pal in his dissent argued to the contrary – self-defence, in his view,
was inherent in sovereignty and could not be “affected by implication”.41
The approach of the IMTFE was therefore case-by-case and focused on
different theatres of war. Robert Cryer argues that it is possible that the
majority did not define aggression to avoid suggestions that their definition covered acts by the prosecuting nations.42
The lack of definition by the IMT and the IMTFE was understandable but left more questions than answers. Gordon Ireland observed at thattime that aggressive war had never been acceptably defined internationally, and there were serious doubts as to if it could ever be.43 He argued that“not all war has been or can here be condemned, for even the prosecuting
nations are not universal pacifists, and before one form of war can be singled out for punishment, it ought to be made clear what kinds are included”.44
State-focused understanding of aggression dominated internationallaw for decades after the conclusion of the Nuremberg and Tokyo Trials.
The 1950 Nuremberg Principles,45 codifying the IMT law, and the 1954
Draft Code briefly mentioned crimes against peace as offences punishable
under international law, but fell short of defining them.46 The International
40
41
42
43
44
45

46

Ibid., p. 48495.
Dissenting Opinion of Judge Pal, p. 91, see above note 21.
Boister and Cryer, 2008, p. 121, see above note 14.
Ireland, 1950, p. 83, see above note 1.
Ibid.
Adopted by the International Law Commission at its second session in 1950, Yearbook of
the International Law Commission, 1950, vol. II (https://www.legal-tools.org/doc/6465a9/).
Principle VI of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, Adopted by the International Law
Commission at its second session, in 1950, Yearbook of the International Law Commission,

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Law Commission, in charge of formulating both the Draft Code and theNuremberg Principles, deferred in this matter to the Special Committee
established by the General Assembly.47 Only in 1974 did the General Assembly adopt Resolution 3314 defining aggression.48 Article 1 of this resolution states that “aggression is the use of armed force by a State against
the sovereignty, territorial integrity or political independence of anotherState, or in any other manner inconsistent with the Charter of the United
Nations”. It is clear that this provision is consonant with Article 2(4) of
the UN Charter prohibiting the use force against territorial integrity orpolitical independence of another State. Article 5(2) of Resolution 3314
mentions that aggression gives rise to international responsibility but fails
to specify the type of this responsibility as well as the consequences of
establishing it. It appears that the General Assembly aimed at obliging
States to refrain from aggression and did not deal with matters of individual criminal responsibility.
The crime of aggression made its way back into international criminal law only in 1998, when the drafters of the Rome Statute of the ICC
included the crime of aggression within the jurisdiction of the Court. The
definition of this crime, which proved so difficult to furnish in the 1940s,
had still been missing in the Rome Statute until 2010, when the Assemblyof States Parties finally reached an agreement on this controversial issue.49 Article 8bis of the Rome Statute relies on Resolution 3314 for thelist of acts that qualify as an act of aggression (for example, the invasion
or attack by armed forces of a State or the territory of another State).
Strong ties between State- and individual criminal responsibility provokeda debate around the political nature of this crime and the feasibility ofprosecuting aggression internationally. Indeed, the ICC included a higher
threshold for aggression than that contained in Resolution 3314 by requiring that act of aggression, “by its character, gravity and scale, constitutes
a manifest violation of the Charter of the United Nations”.50 On 15 De-

47
48

49

50

1950, vol. II (see Principle VI, along with commentaries at https://www.legal-tools.org/
doc/038f9a/).
Boister and Cryer, 2008, p. 264, see above note 14.
United Nations General Assembly, resolution 3314(XXIX), 14 December 1974 (https://www.legal-tools.org/doc/752c30/).
Resolution RC/Res.6., adopted at the 13th plenary meeting, on 11 June 2010 (https://www.
legal-tools.org/doc/0d027b/).
Rome Statute, Article 8bis(1) (emphasis added) (https://www.legal-tools.org/doc/3cf6dd/).

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cember 2017, the Assembly of States Parties activated the jurisdiction of
the ICC over the crime of aggression with effect from 17 July 2018.51
This date was marked by the ICC as a moment of historic significance,
despite the ongoing difficulties in defining both the scope of the Court’s
jurisdiction as well as the exact opt-out procedure available to countries
not wishing to be bound by the amendment to the Rome Statute.52
If one looks at the evolution of the crime of aggression, three major
trends become obvious. Firstly, there is an ongoing reluctance at defining
the offence. Even though the Rome Statute has now been amended to include the elaborate definition of that crime, the road to the adoption of theamendments was thorny and the intricate nature of the legal definition canbe explained precisely by States’ desire to create a feasible opt-out mechanism that would protect them from the jurisdiction of the Court.
Secondly, the discussion that took place in Tokyo as to whether aState can unilaterally invoke the right to self-defence is still a very timely
and relevant one. On 17 May 2018, at the meeting of the UN Security
Council dedicated to its role in maintaining international peace, the representatives of Brazil warned against expansive interpretation of the right toself-defence in violation of Article 2(4) of the UN Charter. Brazil’s representatives noted that despite the year 2018 marking the ninetieth anniversary of the Kellogg-Briand Pact prohibiting the use of force as national
policy, States keep unilaterally invoking it for various purposes, including
the protection of human rights, thereby putting in question the stability of
an international legal order.53 The restrictive interpretation of the right toself-defence furnished by the majority at the IMTFE is therefore very
modern and relevant, as it resonates with the debates currently ongoing in
the UN Security Council.
Thirdly, and related to the question of self-defence, is the ongoing
contestation of the scope of the prohibition of the use of force. The Tokyo
judgment essentially avoided an overall discussion of the issue, but ithighlighted the criminality of the motivation to wage an aggressive war
51

52

53

ICC, Press Release, “Assembly activates court’s jurisdiction over crime of aggression”, 15
December 2017 (https://www.legal-tools.org/doc/40be95/).
Nikolas Stürchler, “The Activation of the Crime of Aggression in Perspective”, EJIL:
Talk!, 26 January 2018 (available on its web site).
Security Council 8262nd meeting, “Security Council Must Rectify Failure to Prohibit Useof Force, Maintain International Peace, Speakers Stress in Day-long Debate”, SC/13344,
17 May 2018.

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with the purpose of dominating another country. As recently noted by
Brazil, force still occupies a prominent place in international relations
with various justifications underlying its deployment, including humanitarian intervention, or acting to alleviate the extreme humanitarian suffering of the people.54 For instance, the UK engaged creatively with the concept of humanitarian intervention to justify the Syria strikes of 13 April
2018.55 The action was met by scepticism in some legal circles as this
doctrine fell short of being an established principle of customary international law.56
11.4. War Crimes
The category of war crimes draws its substantive content from international humanitarian law, which can be roughly presented as a combinationof ‘the law of the Hague’ and ‘the law of Geneva’. The former, codified in
the 1899 and 1907 Hague Conventions, provides definitions of lawful
combatants, regulates means and methods of warfare and the treatment of
persons no longer taking part in hostilities (hors de combat). The lattercomprises four Geneva Conventions of 1949 and two Additional Protocols of 1977 dealing primarily with the treatment of persons who do not,or no longer, take active part in hostilities (civilians, the wounded, the sickand the prisoners of war).57
International criminal law and international humanitarian law areclosely connected, which explains the relatively solid grounding of war
crimes in the sources of law. However, the aims of these two disciplines
are different. International criminal law deals with the individual responsibility for violence that erupts in the course of an armed conflict between
sovereign States (belligerency) or between armed groups within the State(insurgency).58 In contrast, international humanitarian law performs moregeneral regulatory functions and speaks to a wider audience. International
54

55
56

57

58

Syria Action – UK Government Legal Position, 14 April 2018 (available on the web site of
the UK Government).
Ibid.
Opinion of Professor Dapo Akande, The Legality of the UK’s Air Strikes on the Assad
Government in Syria, 16 April 2018 (available on the web site of the UK Government).
Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law, third edition,
Oxford University Press, 2013.
ICTY, Prosecutor v. Tadic, Decision on the Defence Motion on Jurisdiction, 10 August
1995, IT-94-1, para. 96 (‘Tadic Jurisdictional Decision’) (https://www.legal-tools.org/doc/
01079f/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

humanitarian law frequently calls on States, as opposed to individuals, toensure compliance by their military with the rules applicable in armed
conflicts.
The absence of any legal precedent regarding the crimes prosecutedinternationally, first by the IMT and then by the IMTFE, inspired the workof the United Nations War Crimes Commission, which was set up in 1943
to assist with finding substantive definitions. The primary task of thisbody was to investigate facts and formulate legal opinions relating to war
crimes and penal liability of the perpetrators.59 Consequently, war crimes
as a category made an early entrance onto the scene of international criminal law and largely dominated it. Article 6 of the Nuremberg Charter andArticle 5 of the Tokyo Charter extended the jurisdiction of these Tribunals
over war crimes, together with crimes against peace and crimes against
humanity.60 War crimes re-emerged in the statutes of the ICTY,61 ICTR,62
and Special Court for Sierra Leone,63 as well as the Law on Establishing
the Extraordinary Chambers in the Courts of Cambodia.64 Article 8 of theRome Statute contains the most sophisticated and detailed account of war
crimes in modern international criminal law.
The IMTFE in the 1940s did not dwell on the contextual elementsof war crimes and legal distinctions between different forms of warfare,but rather focused on specific instances of offending. The judges dismissed most of the charges describing responsibility of the defendants forvarious acts of mass atrocity on technical grounds, retaining only two
counts covering war crimes and crimes against humanity (counts 54 and
59

60
61

62

63

64

History of the United Nations War Crimes Commission and the Development of the Laws
of War compiled by the United Nations Commission, His Majesty’s Stationary Office,London, 1948, p. 169 (‘UN War Crimes Commission’) (https://www.legal-tools.org/doc/
cac045/).
Article 6 of the Nuremberg Charter and Article 5 of the Tokyo Charter.
Statute of the International Criminal Tribunal for the former Yugoslavia (‘ICTY Statute’)(as amended on 17 May 2002), 25 May 1993, Articles 2 and 3 (https://www.legal-tools.
org/doc/b4f63b/).
Statute of the International Criminal Tribunal for Rwanda (‘ICTR Statute’) (as last amended on 13 October 2006), 8 November 1994, Article 4 (https://www.legal-tools.org/doc/
8732d6/).
Statute of the Special Court for Sierra Leone, 16 January 2002, Articles 3 and 4 (https://www.legal-tools.org/doc/aa0e20/).
Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (ECCC) Law, Article 6 (https://www.
legal-tools.org/doc/88d544/).

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11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law?

55).65 Count 54 of the indictment charged 19 persons for having ordered,authorized, permitted persons to commit offences violating the laws of
war. Count 55 charged some defendants for being, by virtue of their respective offices, responsible for securing observance of the conventions
and the laws and customs of war in respect of the armed forces, prisonersof war and civilians of the Allied forces; and for deliberately and recklessly disregarding their duty to take adequate steps to secure the observanceand to prevent breaches thereof.66As Yuma Totani noted, the focus of theTokyo Trial on crimes against peace led to the proposal of the lead American Prosecutor Joseph Keenan to drop the war crimes charges and shorten
the trial. The proposition was rejected, and charges were heard.67 The majority thus spent over 1,000 pages discussing evidence relating to aggression but very little space tackling war crimes.68 The approach of the IMTFE was thus illustrative rather than comprehensive.
As with the rest of the Tokyo judgment, the discussion of war
crimes was highly factual. The legal analysis was interwoven into thegeneral narrative of the Japanese aggression. There are, however, somesignificant discussions in the judgment that can serve as a legal precedent.
For instance, the IMTFE encountered the question of whether the normsof the laws of war contained in the Geneva Prisoner of War Convention of1928 are applicable to individuals in cases when the State is not legallybound by the respective convention. The IMTFE resolved this question byreference to customary international law, arguing that “under the customary rules of war, acknowledged by all civilized nations, all prisoners of
war and civilian internees must be given humane treatment”.69
In a highly significant part of the judgment, there is a discussion of
the rapes and other atrocities which occurred in Nanjing:
the members of the victorious Japanese Army had set upon
the prize to commit unlimited violence. Individual soldiersand small groups of two or three roamed over the city murdering, raping, looting and burning. There was no discipline
65

66
67
68
69

See Yuma Totani, “The Case against the Accused”, in Yuki Tanaka, Tim McCormack andGerry Simpson (eds.), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited,
Martinus Nijhoff, Leiden, 2011, p. 154.
Tokyo Judgment, pp. 48423-48424.
See Totani, 2011, p. 153, above note 65.
Boister and Cryer, 2008, p. 190, see above note 14.
Tokyo Judgment, p. 49719-20.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

whatever. Many soldiers were drunk. Soldiers went throughthe streets indiscriminately killing Chinese men, women andchildren without apparent provocation or excuse until inplaces the streets and alleys were littered with the bodies of
their victims. According to another witness Chinese were
hunted like rabbits, everyone seen to move was shot. At least
12,000 non-combatant Chinese men, women and children
met their deaths in these indiscriminate killings during thefirst two or three days of the Japanese occupation of thecity.70

This is a rather under-acknowledged and early discussion on sexual
crimes in international criminal law.71 It was not until the 1990s that the
ICTY and the ICTR picked up this important topic and prioritized theprosecution of sexual violence in times of war. The UN Commission ofExperts, set up to analyse information pertaining to the violations of international humanitarian law on the territory of the former Yugoslavia,
whose report served as a catalysis for the creation of the ICTY, singled out
sexual violence as one of the main avenues for its work.72 Annex IX of theCommission’s report entitled “Rape and Other Forms of Sexual Assault”
was part of the Commission’s study pursuing the objective to serve, interalia, as a basis for the eventual prosecution of rape and sexual assault by
the ICTY.73 M. Cherif Bassiouni, who headed the Commission at that time,
noted that this rape investigation was the first one of its kind conducted intime of war.74 The expectation was therefore that the ICTY would give

70
71

72

73

74

Ibid., p. 49605.
See Diane Orentlicher, “The Tokyo Tribunal’s Legal Origins and Contributions to International Jurisprudence as Illustrated by its Treatment of Sexual Violence”, chap. 5 above.
United Nations Security Council, Resolution 780, 6 October 1992 (https://www.legal-tools.
org/doc/cdc5ad/).
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) dated 27 May 1994 (‘Final Report’), UN Doc. S/1994/674, Annex IX, p.
6 (https://www.legal-tools.org/doc/361096/).
M. Cherif Bassiouni, “The United Nations Commission of Experts Established Pursuant toSecurity Council Resolution 780”, in American Journal of International Law, 1994, vol.
88, pp. 794-795, 798.

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11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law?

“this particularly heinous crime its utmost attention”,75 which the Tribunal
did.76Another significant discussion on substantive war crimes pertained
to that of torture: its definition and particular conduct that constitutes it.
The IMTFE noted that the practice of torture of prisoners of war and civilian internees prevailed at practically all places occupied by Japanese
troops, both in the occupied territories and in Japan. The IMTFE further
listed the types of torture inflicted: “[a]mong these tortures were the water
treatment, burning, electric shocks, the knee spread, suspension, kneelingon sharp instruments and flogging”.77
Some of the issues discussed by the IMTFE have clear resonancewith current debates. This is where the lens of ‘constructed temporality’ isuseful in assessing the developments in international criminal law. For
instance, it is interesting to dwell on the IMTFE’s definition of waterboarding as torture:
The Japanese Military Police, the Kempeitai, was most active in inflicting these tortures. […] The Kempeitai wereadministered by the War Ministry. A Kempeitai training
school was maintained and operated by the War Ministry inJapan. It is a reasonable inference that the conduct of theKempeitai and the camp guards reflected the policy of the
War Ministry. The so-called “water treatment” was commonly applied. The victim was bound or otherwise secured in aprone position; and water was forced through his mouth andnostrils into his lungs and stomach until he lost consciousness. Pressure was then applied, sometimes by jumping upon
his abdomen to force the water out. The usual practice was torevive the victim and successively repeat the process.78

In a sad and ironic twist, the use of torture as an ‘enhanced interrogation technique’ designed to fight terrorism, has re-entered public discourse of many States, including the US following the 9/11 attacks. Francesca Laguardia explains how the turn of criminal justice towards preven75
76

77
78

Ibid, p. 799.
For a comprehensive overview of the track record of the ICTY, see Serge Brammertz andMichelle Jarvis, Prosecuting Conflict-Related Sexual Violence at the ICTY, Oxford University Press, 2016.
Tokyo Judgment, p. 49663.
Ibid., p. 49664.

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The Tokyo Tribunal: Perspectives on Law, History and Memorytion of terror rather than the extraordinary circumstances of the fightagainst terror in the context of a non-international armed conflict is chiefly to blame for the increasing acceptance of torture by some officials of
the Central Intelligence Agency (‘CIA’). 79 In her powerful article, shequestions both the effectiveness of torture and the principles underlying
its use, referring, for instance, to the case of the Guantánamo detainee,
Khalid Sheikh Mohammed. In response to being waterboarded, he falsely
stated that two individuals, subsequently erroneously detained, werelinked to Al-Qaeda.80 Notwithstanding the criticism by academics, the factthat the current CIA director, Gina Haspel, oversaw a secret prison wherewaterboarding was used, attests to the ongoing contestation related to thecontent and definition of war crimes as well as the implications of engaging in this conduct.81
It is therefore clear that the IMTFE’s discussion of substantive war
crimes has strong resonance with today’s reality as the work on defining
commonly accepted standards of behaviour is still ongoing.
11.5. Superior Responsibility
The last important contribution of the Tokyo judgment that is factual innature but has strong legal implications is its interpretation of superior
responsibility. The Tokyo Charter did not have a separate provision onmodes of liability and only mentioned that “leaders, organizers, instigators and accomplices participating in the formulation or execution of acommon plan or conspiracy” are to be held responsible for the substantive
crimes mentioned in Article 5 of the Charter. This early stage of the development of international criminal law is characterized by the lack of
distinction between the forms of participation and the substantive offences.82 The IMTFE (and the IMT) judges did not dwell on the way in which
individuals became involved in crimes, but rather focused on their actual
contribution based on the circumstances of the case. It was only later, that
79

80

81

82

Francesca Laguardia, “Imagining the Unimaginable: Torture and the Criminal Law”, inColumbia Human Rights Law Review, 2015, vol. 46, p. 48.
Ibid., p. 71, citing Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program Executive Summary, 2014,
pp. 83, 108, n. 448.
David Smith, “Torture allegations dog Gina Haspel as she is poised to be first female CIA
head”, The Guardian, 16 March 2018 (available on its web site).
Aksenova, 2016, p. 79, see above note 5.

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modes of liability crystalized into a separate issue and occupied an independent article in the Draft Code.83
Despite the lack of explicit focus on modes of liability, there is a
striking similarity between the formulation of charges 54 and 55 in theTokyo indictment and Articles 25(3)(b) and Article 28 of the Rome Statute of the ICC. As mentioned in the previous section, count 54 charged
the defendants with “ordering, authorizing and permitting violations of thelaws of war”, while count 55 dealt with recklessly disregarding the legal
duty to secure the observance of the laws of war. Article 25(3)(b) of theRome Statute establishes responsibility for complicity in the form of ordering, soliciting, or inducing the commission of the crime, while Article
28 deals with the responsibility of military commanders and other superiors. Under the latter, military commanders are responsible if they either
knew or, owing to the circumstances at the time, should have known – andother superiors are liable if they either knew, or consciously disregarded
information which clearly indicated – that the subordinates were committing or about to commit the relevant crimes.
Yuma Totani argues that one of the biggest challenges to the prosecution in Tokyo was securing evidence of criminal orders for count 54
because of the empire-wide document destruction orchestrated by the Japanese Government prior to its surrender.84 The prosecution procured witness statements and affidavits from victims, perpetrators and bystanders.
This evidence did not implicate specific individuals but helped establish
patterns of atrocities perpetrated by the Japanese, which, in turn, allowed
the prosecution to argue that the atrocities were not random.85 This was aninteresting way of handling evidence and linking it to specific individuals.
The analysis of the IMTFE with respect to this count was thus largely inferential – suggesting that the omnipresent patterns attest to individual

83

84
85

UN Doc. A/RES/177(II) (https://www.legal-tools.org/doc/57a28a). Doudou Thiam, who
was appointed as the ILC’s Special Rapporteur charged with preparing the document in the
1980s, identified the gap in international criminal law in attributing responsibility for thecrimes committed by a plurality of persons. The Commission, from its thirty-fifth session,in 1983, to its forty-second session, in 1990, received eight reports from the Special Rapporteur. See the Report of the International Law Commission on the Work of its FortyThird Session, 29 April-19 July 1991, UN Doc. A/46/10, p. 80 (https://www.legal-tools.
org/doc/88a770/). See also Aksenova, 2016, p. 74, above note 5.
Totani, 2011, see above note 65.
Ibid.

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responsibility for ordering and not the other way around. The defence unsuccessfully contested this approach.86 The IMTFE concluded:87
During a period of several months the Tribunal heard evidence, orally or by affidavit, from witnesses who testified indetail to atrocities committed in all theaters of war on a scale
so vast, yet following so common a pattern in all theaters,that only one conclusion is possible - the atrocities were either secretly ordered or wilfully permitted by the Japanese
Government or individual members thereof and by the leaders of the armed forces.

The IMTFE further held that war crimes were a matter of policy:88
At the beginning of the Pacific War in December 1941 theJapanese Government did institute a system and an organization for dealing with prisoners of war and civilian internees.
Superficially, the system would appear to have been appropriate; however, from beginning to end the customary andconventional rules of war designed to prevent inhumanity
were flagrantly disregarded. Ruthless killing of prisoners byshooting, decapitation, drowning, and other methods; deathmarches in which prisoners including the sick were forced tomarch long distances under conditions which not even wellconditioned troops could stand, many of those dropping out
being shot or bayonetted by the guards; forced labor in tropical heat without protection from the sun; complete lack of
housing and medical supplies in many cases resulting inthousands of deaths from disease; beatings and torture of all
kinds to extract information or confessions or for minor offences.

Inferential analysis of the mental state of the defendant in the casesof ordering has interesting resonance with modern international criminal
law. In the Šljivančanin case dealing with the movement of prisoners fromthe Vukovar hospital to Ovčara by the Yugoslav People’s Army during theBalkan war, the ICTY Appeals Chamber viewed the failure of the accusedto prevent the implementation of the unlawful order as satisfying all the

86
87
88

Ibid., p. 158.
Tokyo Judgment, p. 49592
Ibid., p. 49593.

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11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law?

requirements for a conviction as an accomplice to murder by omission.89
It was held that although Mr. Šljivančanin no longer exercised de jure authority over the military police, his duty to protect the prisoners of war
required him to order the police not to withdraw from the hospital where
the prisoners were kept. The Appeals Chamber employed largely inferential analysis suggesting that “had he ordered the military police not towithdraw, these troops may well have, in effect, obeyed his order to remain there”.90
Similarly, the ICC in Mudacumura (charged with committing war
crimes, from 20 January 2009 to the end of September 2010, in the context of the conflict in the Kivus in the Democratic Republic of the Congo)
tackled his responsibility for ordering under Article 25(3)(b) by highlighting that Mudacumura was the top military commander for the relevant
period and instructed others to conduct a military campaign resulting in
the commission of war crimes.91 His knowledge about the crimes was inferred from the reports he allegedly received by virtue of his position.
Thus, it is clear that despite the developed legal framework for different
forms of individual criminal responsibility, inferential analysis based on
the facts and the position held by the accused is still employed in modern
international criminal law.92
With respect to count 55, the first challenge was to prove criminal
negligence in cases involving civilians in positions of authority – an untested territory at that time. 93 One of the legal tools employed by the
IMTFE to activate responsibility of civilians was referencing the Hague
Convention IV of 1907, which states that: “Prisoners of War are in the
power of hostile Government, but not of the individuals or corps who capture them”.94 The idea was therefore that the primary responsibility for thewelfare of prisoners rests with the government. To that effect, the judges
ruled on the responsibility of the government as a collective entity:
89

90
91

92
93
94

ICTY, Prosecutor v. Mrkšić and Šljivančanin, Appeal Judgment, 5 May 2009, T-95-13/1A, paras. 101-103.
Ibid., para. 93; Aksenova, 2016, p. 105, see above note 5.
ICC, Prosecutor v. Mudacumura, Pre-Trial Chamber II, Decision on the Prosecutor’s Application under Article 58, 13 July 2012, ICC-01/04-01/12, paras. 64-65 (https://www.
legal-tools.org/doc/ecfae0/).
Aksenova, 2016, p. 258, see above note 5.
Totani, 2011, see above note 65.
Tokyo Judgment, p. 48498; Totani, 2011, p. 158, see above note 65.

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The Japanese Government condoned ill-treatment of prisoners of war and civilian internees by failing and neglecting topunish those guilty of ill-treating them or by prescribing trifling and inadequate penalties for the offence. That Government also attempted to conceal the ill-treatment and murderof prisoners and internees by prohibiting the representativesof the Protecting Power from visiting camps, by restricting
such visits as were allowed, by refusing to forward to theProtecting Power complete lists of prisoners taken and civilians interned, by censoring news relating to prisoners and internees, and ordering the destruction of all incriminating
documents at the time of the surrender of Japan.95

The second challenge for the IMTFE was to dissect the responsibility of the government as a collective entity and link it to individual accused persons. This involved assessing the mens rea standard for this category of crimes. The judges interpreted the standard of ‘reckless disregard’ of a duty in a very broad way: “[i]f such a person had, or should, but
for negligence or supineness, have had such knowledge he is not excusedfor inaction if his office required or permitted him to take any action toprevent such crimes”. 96 Furthermore, the IMTFE judges stressed thatmerely accepting assurances from those more directly involved in criminality is not enough:[I]t is not enough for the exculpation of a person, otherwise
responsible, for him to show that he accepted assurancesfrom others more directly associated with the control of theprisoners if having regard to the position of those others, tothe frequency of reports of such crimes, or to any other circumstances he should have been put upon further enquiry as
to whether those assurances were true or untrue.97

Interestingly, these findings did not translate into many guilty verdicts. Only three former Cabinet members were convicted on the groundof negligence (Hirota, Shigemitsu and Koiso). Seven others were foundguilty of war crimes on various legal and factual grounds.98

95
96
97
98

Tokyo Judgment, p. 49750.
Ibid., pp. 48445-6.
Ibid.
Totani, 2011, p. 159, see above note 65.

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The recent Bemba appeal judgment rendered by the ICC provides
for an interesting comparison with the mens rea standard in cases of superior responsibility. Bemba, who was President and Commander-in-Chiefof the Movement for the Liberation of the Congo, was convicted for war
crimes by the Trial Chamber under Article 28(a) of the Rome Statute,which, as mentioned, establishes responsibility of a military commander
who either knew or should have known about the crimes committed by
the subordinates. The Trial Chamber in this case acknowledged that Bemba undertook some measures to address the criminality. In particular, hesent a letter to the UN Representative in the region and requested thePrime Minister of the Central African Republic to set up an international
commission of inquiry. The trial judges nonetheless held that Bemba’s
motivations in doing so were not “genuine”.99 On appeal, Bemba argued
that, having been told that the investigation would take place, it was reasonable for him to wait for it.100 The Appeals Chamber agreed with him
and overturned his conviction, inter alia, for this reason, highlighting thepractical and operational difficulties Bemba faced as a remote commander
operating in a foreign country.101
The Appeals Chamber therefore adopted a much more conservative
view on superior responsibility than that of the IMTFE 70 years earlier. It
must be noted that the IMTFE dealt with responsibility of civilians underthe ‘reckless disregard’ standard, while the ICC in the Bemba case lookedat the responsibility of a military commander pursuant to the ‘knew orshould have known’ test. The latter standard is however even lower thanthe ‘reckless disregard’ (or, as Article 28(b) of the Rome Statute calls it,‘conscious disregard’) for other superiors. The situation in Bemba of a
failure of the commander to follow up on his orders for investigation
speaks directly to the pronouncement of the Tokyo Tribunal, which ruledthat accepting mere assurances from others is not sufficient to absolve asuperior of responsibility. The ICC Appeals Chamber ruled to the contrary.
Moreover, it introduced the idea of a ‘remote commander’ – someone who
cannot fully control the situation on the ground due to operational inabil99

ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Appeals Chamber, Judgment on the appealof Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, ICC-01/05-01/08 A, para. 131 (https://www.legal-tools.
org/doc/40d35b/).
100 Ibid., para. 159.
101 Ibid., para. 189.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

ity and thus cannot be held responsible for any actions outside of his or
her control. This conception stands in contrast with the sweeping approach of the IMTFE holding the whole government responsible for thesystem of ill treatment of prisoners. It is therefore interesting to observe
continuous contestation as to the scope of the notion of superior responsibility and the exact duties imposed on those in positions of authority.
11.6. Conclusion
This chapter demonstrated that international criminal law is not static. It isdeveloping in a non-linear fashion by adding layers of complexity withevery new cycle of its existence by constantly revising the same philosophical and legal problems. The Tokyo judgment is indeed very factual,
which is in part due to the lack of the applicable law available at the timeof its creation. But its struggles are not too different from those of modern
international criminal justice, well equipped with sophisticated legal formulae and case law. There continue to be debates about the best way of
attributing individual responsibility for collective offending, assessing themental state of the accused in the absence of directly implicating evidence,
and applying solidified prohibitions of various international crimes, suchas torture, consistently across the spectrum of factual scenarios.
The flaws of the Tokyo judgment were arguably outweighed by thefact that the trial took place in a near legal vacuum,102 having only the Nuremberg process to rely upon for precedent. Judith Shklar grappled withthe application of the principle of legality to the Nuremberg trial when nolaw had existed prior to it.103 Her solution was to draw attention awayfrom the legalistic propensity of thinking about law in black and whiteterms as ‘being there’ or ‘not being there’. It is much more plausible whenassessing the legacy of the IMTFE (and the IMT) to focus on the qualityof its work and the strength of its intention to achieve the best possible
form of justice available at that moment in time.
While there were many deficiencies in the way law was administered in Nuremberg and later in Tokyo, it was an achievement in itself thatthe debates about the destiny of the defendants took place within the parameters set out by a legal trial. Mass execution or a purely political process could have been other alternatives. The fact that the setting of an in102
103

Shklar, 1964, p. 153, see above note 12.
Ibid.

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11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law?

ternational criminal trial was chosen to deal with the worst atrocities of
the twentieth century had profound impact on how we currently think
about individual responsibility of those in positions of power.

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12______The “President’s Judgment” andIts Significance for the Tokyo Trial
David Cohen*
12.1. Introduction
The concurring opinion of Sir William Webb, the President of the International Military Tribunal for the Far East (‘IMTFE’), was promulgatedwith the judgment of the majority and is widely referred to by scholars.
Less well known, however, is another document entitled “The President’s
Judgment” but never published.1 Webb completed and revised a draft ofthis judgment, noting in May 1948 that he hoped it would be adopted as
the majority judgment of the Tribunal. 2 Webb circulated it to the otherjudges in the form of a “First Draft Judgment” and then a revised “Second

*

1

2

David Cohen is the Director of the Center for Human Rights and International Justice and
WSD Handa Professor in Human Rights and International Justice at Stanford University.
He is a leading expert in the fields of human rights, international law and transitional justice. Professor Cohen taught at UC Berkeley from 1979-2012 as the Ancker Distinguished
Professor for the Humanities, and served as the founding Director of the Berkeley War
Crimes Studies Center. His involvement in research in war crimes tribunals began in the
mid-1990s with a project to collect the records of the national war crimes programmes
conducted in approximately 20 countries in Europe and Asia after World War II. This
chapter (particularly Section 12.3.) is based on his “An Alternative Perspective on Accountability for Crimes against Peace: The Two Webb Judgments”, in David Cohen andYuma Totani, The Tokyo War Crimes Tribunal: Law, History, and Jurisprudence, Cambridge University Press, 2018, chap. 8.
The manuscript of Webb’s Judgment may be found in the Papers of Sir William Webb at
the Australian War Memorial in Canberra.
In a letter to MacArthur of 13 August 1947, which was apparently never sent, Webb referred to his activity in drafting as follows: “I am quite sure you intend that I should have
all the help I need to write the Court’s judgment, or, in any case, the leading judgment.
This will be one of the most important and the longest in history. The law alone will be
dealt with at considerable length” (National Archives of Australia (‘NAA’), M1418, 6, p.
21). In a memorandum to all the judges on 20 December 1946, Webb invited their comments “on the first draft which I framed to meet what I thought might be the opinion of the
majority” (NAA, M1417, 24, p. 1).

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Draft Judgment”.3 When the majority refused to accept it, Webb decided
to use the vastly shorter text that he provided to the IMTFE as his concurring opinion.4
This chapter considers why Webb refrained from using this massive
670-page typescript as his concurring opinion and what its significance isfor the legacy of the Tokyo Trial. It will also consider how Webb’s analysis of the evidence compels reconsideration of the ‘victor’s justice’ perspective on the IMTFE, particularly concerning the charges of crimes
against peace.
The President’s Judgment is a complex and comprehensive document. Intended as the Tribunal’s judgment, it is nothing less than a complete alternative account of the trial and the grounds of liability for the 25
defendants. Pal also produced what he termed his own “Judgment”. But
unlike Pal’s, Webb’s judgment actually addresses the substance of the trial
and focuses, as was required, on the evidence against each of the individual accused. For this reason alone, Webb’s virtually unknown draft judgment commands our attention as it provides the rigorous factual and legal
analysis of individual responsibility that both the majority judgment andPal’s dissent fail to produce.
While Webb agreed with the majority that all of the defendantsshould be found guilty, he disagreed with them on almost everything else.
Most importantly, Webb differed from the majority, Röling and Pal on thelaw as well as the legal and factual basis for the guilty verdicts. Unlike hiscolleagues, Webb provided a coherent, well-argued, reasoned account of
the basis for finding all of the individual accused guilty on various, but by
no means all of the charges against them. In a memorandum to the judges
of February 1947, Webb stated that the Tribunal’s judgment should bebased upon a “full statement of evidence against and for each accused,followed by finding of fact, application of relevant law, and finally the

34Webb’s memorandum of 27 December 1946 is entitled “Second Draft Judgment” whichsets out the general strategy for the second draft (NAA, M1417, 25).
This chapter draws upon the co-authored publication of David Cohen and Yuma Totani,Tōkyō saiban “shinwa” no kaitai: Paru, Rērinku, Webu san-hanji no sōkoku [The Deconstruction of the Tokyo Trial ‘Myths’: Battles among Three Justices, Pal, Röling and Webb],
Chikuma Shobō, Tokyo, November 2018.

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verdict in his case”. 5 This is precisely what is lacking in the majority
judgment and Pal’s dissent.6
The bulk of the majority judgment is taken up by a narrative of theconspiracy to wage an aggressive war that tends to obscure the role of individual actors in favour of generalizing about the conspiracy. Webb’s
judgment, on the other hand, focuses on the role of each individual in thecomplex chain of events that led to the Japanese attacks against China andsubsequently other countries. Unlike the majority and Pal, Webb also generally considers the contentions of both the prosecution and the defence.
Webb’s methodology thus stands in opposition to that of the other judges
because he considered the individualized weighing of all the evidence as
an essential requirement.
The majority judges, on the other hand, had decided that they would
make their factual findings “without reference to the Defence summations”.7 Indeed, the majority judgment astonishingly makes little reference
to the defence case. The same is true of Pal’s “Judgment”. Webb, however,urged the judges to incorporate analysis of the defence case into their
judgment in a memorandum of 17 May 1948 where he stated: “we must
do that to be fair”. In a further admonishment applicable with equal force
to Pal and to the majority, he argued that their task as judges is not “towrite any phase of history”.8 Their duty, he continued, is to ascertain theguilt of the accused based upon the evidence and by a statement of factual
findings as to each of them.
The difference in Webb’s approach to that of the other judges isstark in quantitative terms. Pal’s dissent fails to address the evidence
against individual accused almost entirely. Instead, he treats them as a collectivity, none of whom bear any responsibility for Japanese war crimes
which he nonetheless characterizes as not only widespread but “devilish
5
6

7
8

NAA M1417, 25, 21, 21 February 1947, p. 2.
Pal presented his separate opinion as “Judgment”, that is, as a substitute for the judgmentof the Tribunal rather than a separate opinion setting out his disagreement with the majority. In fact, Pal only refers to the majority judgment once, in the first sentence of his opinion. He then proceeds to write a final judgment for the trial which in his opinion shouldhave taken place at Tokyo, a trial in which only the Allies would have been in the defendant’s dock. For a full treatment of Pal’s Judgment, see David Cohen and Yuma Totani, The
Tokyo War Crimes Trial: Law, History, and Jurisprudence, Cambridge University Press,
Cambridge, 2018, chaps. 12-13.
Memorandum of Webb to all judges, 17 May 1948, Australian War Memorial, 3DRL 2481.
Ibid.

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and fiendish” in nature.9 The majority judgment, on the other hand, does
include individual verdicts with factual findings and legal conclusions forall 25 of the accused, which nonetheless comprise only 5 per cent of thejudgment. In Webb’s judgment, however, individual verdicts comprise
401 out of 670 pages. Some 60 per cent is devoted to Part VI, “Individual
Cases”, providing specific factual findings against each of the individual
accused persons.
Beginning with Pal, critics of the guilty verdicts at Tokyo have too
often concluded that they are based upon victor’s justice rather than theevidence against the accused. Most of those critics, however, are unlikely
to have analysed the contents of the nearly 50,000 pages of transcript,
more than 4,000 supporting exhibits, and the almost 800 depositions andaffidavits. Likewise, neither Pal’s dissent nor the majority judgment assesses this massive body of evidence concerning each of the individual
accused. This is precisely the glaring shortcoming addressed by the President’s Judgment. Thus, Webb alone fulfilled the basic duty of a judge inbasing his verdicts of guilt or innocence upon a systematic analysis of theevidence supported by a reasoned account justifying his factual and legal
conclusions. His judgment, then, provides a far better basis than the majority or dissenting judgments for assessing whether the verdicts against
the individuals were in fact supported by the evidence or dictated by prejudice or politics. In what follows, we will consider Webb’s treatment of
the most controversial charges at Tokyo – the charges related to the planning, initiating and waging of an aggressive war, and participation in aconspiracy to do so.
12.2. Webb on Crimes Against Peace and Aggression
In his judgment, Webb prefaces his consideration of the liability of eachof the accused for crimes against peace by a series of factual findings inPart IV, “Japan’s Recourse to War”. That section considers the evidence
on how policy decisions were reached involving the war in China and its
later expansion to attacks on the Western powers. The roles played by theaccused in those policymaking bodies are demonstrated by the evidence
presented in the prosecution and the defence cases, a treatment absent in
the majority judgment.
9Pal, p. 1354 in Boister and Cryer (eds.), Documents on the Tokyo International Military
Tribunal: Charter, Indictment, and Judgments, Oxford University Press, 2008 (emphasisin the original text) (https://www.legal-tools.org/doc/38eba7/).

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There, Webb appears to reply to Pal’s claim that acts of State confer
immunity on government policymakers. He also rejects Röling’s argument that officials who intend peace should also be immune from prosecution. Webb applies the principle already established at Nuremberg, that“[t]here is no immunity for anyone, soldier or civilian, who takes part inwhat he knows, or should know, to be an illegal and criminal war”.10 A
handwritten note is appended to this passage that again seems to be aimedat Röling’s unprecedented argument for immunity for five of the accused
whose intentions were peaceful: “There is no principle of law or justicewhich gives immunity […] immunity cannot be granted by this Tribunal
which has no power to alter the law but can only ascertain and apply it”.11
One of the challenges Webb had to meet in analysing the responsibility of the individual accused for crimes against peace arose from his
clear acknowledgement that the Japanese political and military leadershipwas wracked by sharp divisions of opinion and competing policies in regard to war in China and beyond from 1931 to 1945. The majority judgment ignores the legal significance of such evidence by resorting to thetheory of an overarching conspiracy from 1928 to 1945. Pal’s dissent, on
the other hand, scarcely considers such evidence before the Tribunal or its
significance. How did Webb, then, account for holding individual defendants liable in this context of apparent uncertainty about whether and whento go to war?
Webb’s underlying rationale seems to be that, at certain points intime, every one of the accused became aware that Japan was either deciding to engage in wars that could not plausibly be justified on legal
grounds or was actually engaged in such a war. He reasons that, with andin spite of this knowledge, they nonetheless supported and participated inplanning or implementing the aggression. We will examine whether
Webb’s factual findings were based on sufficient evidence to support his
conclusions against each of the accused.
Unlike the majority, Webb deals at length with the technical legal
issue concerning the authority of the Tribunal’s Charter and with the legal
basis for the charges of waging an aggressive war in his judgment. While
the majority was content to merely quote at length parts of the Nuremberg
1011

The President’s Judgment, p. 267, see above note 1.
Ibid. See below on Röling’s argument that an intention to work for peace exculpates theaccused.

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judgment, Webb felt that it was important to address in some detail thekinds of arguments made by Pal, Röling and the defence counsel on theseissues. While Webb’s treatment merits serious attention, the question of
the status of the Charter and of crimes against peace is beyond the scopeof this chapter. One point that deserves mention here, however, is Webb’s
argument as to the role of the Tribunal in defining aggression, something
the majority neglected to do. Webb raises the fundamental question ofhow, in the absence of definitions in the instruments, a determination is to
be made in concrete cases whether the resort to arms constitutes selfdefence or an illegal act of aggression. Webb cites Lauterpacht, who
maintained that under international law, the State resorting to war purportedly in self-defence cannot holdthe right of ultimate determination […] of the legality ofsuch action. No such right is conferred by any other international agreement. The legality of recourse to force in selfdefence is in each particular case a proper subject for impartial determination by judicial or other bodies.12

For Webb, then, this determination was the task of the Tokyo Tribunal.
Applying this principle, Webb moves beyond abstract discussionsof the interpretation of the 1928 Kellogg-Briand Pact (Pact of Paris). Instead, his judgment focuses on the position taken by the Japanese Government itself in negotiations clarifying its understanding of its obligations under the Pact. These negotiations revealed, in his view, that theJapanese Government acknowledged that the only legal justification forrecourse to war was legitimate self-defence. From this perspective, theclaims by the defence (and Pal) that the Tribunal was applying an ex post
facto norm could be dismissed as without merit, for the Japanese Government itself had accepted that recourse to war unless in self-defence,violated international law.
For Webb, it inevitably follows that only a judicial body – in thiscase, the IMTFE – can determine whether the resort to violence in a specific case constitutes aggression or self-defence. To apply this standard, adefinition of aggression is required. As noted above, the majority failed todefine aggressive war, and Pal stated that he would neither define aggression nor offer a conclusion as to whether or not Japan’s invasions of Chi12

Ibid., p. 16 (quoting Hersch Lauterpacht (ed.), Oppenheim’s International Law, sixth edition, vol. II, Longman, Green & Co., London, 1944 [1940], pp. 154–55).

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na and other Asia-Pacific nations constituted aggression. By contrast, in
his judgment, Webb defines criminal aggression as “recourse to war forthe solution of international controversies: as an instrument of national
policy”.13 The standard for determining liability for crimes against peace
thus becomes whether the State in question has engaged in hostilities tofurther its national policies or in legitimate self-defence. Webb applies thisdefinition in both his factual findings and individual verdicts. In each case,he inquires whether warlike actions undertaken in China and elsewhere
were implemented to advance Japanese policy objectives or were responses to military force directed at Japan.
Whatever one may think of the substantive merits of Webb’s definition, what is important here are three factors that distinguish it from theapproach of the majority judgment and Pal’s and Röling’s dissents on thisissue:
1. He has articulated a definition and adduced evidence to show that it
was a definition acknowledged by the Japanese Government andother nations.
2. He has based that definition upon an analysis of generally accepted
standards derived from contemporary international legal instruments and the leading jurisprudence.
3. He has applied this standard to test the evidence in making his factual findings and ultimate determinations of guilt.
These factors together distinguish the President’s Judgment as areasoned opinion in support of its conclusions in contrast to the morehaphazard approach of the other judges.
Webb builds upon his definition of aggression by next addressing
how that standard is to be applied to individual defendants. He reasons
that: “Every state that became a party to the Pact of Paris perceived andacknowledged the illegality and criminality of recourse to war […] as an
instrument of national policy”. Japan, of course, was one of those States.
Webb continues by arguing that if one of those States engages in aggressive war, then “those individuals through whom it acts, knowing as they
do that their state is a party to the Pact, are criminally responsible for thisdelict of state”.14
13
14

Ibid.
Ibid., p. 17 (emphasis supplied).

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Webb has thus followed Nuremberg in rejecting the defence’s andPal’s contention that individuals cannot be held responsible for ‘acts ofstate’. This is, of course, one of the most fundamental contributions, perhaps the most important contribution, of the IMT judgment to the development of international law. It destroyed, once and for all, the legal fictionthat it is States that ‘act’, rather than the individuals who possess the legal
authority and power to determine, control and implement the policies of
those States.
Having articulated this standard, Webb then notes that it must be
applied to those specific individuals who planned or prepared for that war,
knowing that it was aggressive in nature. The burden is on the prosecution
to prove both the aggressive nature of the war and the knowledge of theaccused of its character. In addition to holding those who plan or prepare
aggressive war liable, Webb further articulates the sweeping scope of theapplication of his standard:
The view that aggressive war is illegal and criminal must be
carried to its logical conclusion, e.g., a soldier or civilian
who opposed war but after it began decided it should be carried on until a more favorable time for making peace was
guilty of waging aggressive war.
There are no special rules that limit the responsibility for
aggressive war, no matter how high or low the rank or statusof the person promoting or taking part in it, provided heknows or should know it is aggressive.15

Webb’s standard thus encompasses all those soldiers and civilians
who participate in an aggressive war within the circle of liability, if they
have, or should have had, knowledge of its illegality. The ensuing discussion of the individual verdicts will show how wide Webb was prepared tocast the web of accountability. It is clear, however, that Webb’s standard
directly contradicts the position advanced by Röling that officials who areaware of the aggression but participate in an aggressive war with a viewto peace should be immune from punishment.

15

Ibid., p. 17-a (emphasis supplied).

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12.3. Webb’s Individual Factual Findings and Verdicts on Crimes
Against Peace: Case Studies
We now turn to Webb’s findings against specific defendants on crimes
against peace. We focus on a few as case studies, including some of the‘peacemakers’ whom Röling wanted to excuse from responsibility. We
will see how Webb, unlike the majority, Pal or Röling, weighs the evidence relevant to the charges. Since his treatment of each of the accused isquite lengthy, it is not possible here to provide a full account of all of hisanalysis. We focus instead on examples that make clear the reasoned basisof his conclusions.
12.3.1. The Case of Hata
Shunroku Hata was found guilty by the majority because while he was the
Army Minister, the war in China was waged “with renewed vigor”,16 andbecause he was a member of the conspiracy to achieve domination of East
Asia and the Pacific. This conclusion by the majority does not explain
Hata’s connection to the conduct of the war in China or provide an evidence-based account in support. In contrast to the majority’s cursory
treatment, Webb devotes 14 pages to a detailed analysis of the evidence
against Hata.17
Webb first considers Hata’s role after he “assumed command inCentral China” on 14 February 1938. Webb quotes Hata’s key admission
during his interrogation about the nature of the conflict in China, that:“Although it actually was a war, all they ever considered it was a Chinese
Incident!”18 This admission is significant, of course, because it both undercuts the defence’s position on China as well as indicates Hata’s complete awareness of the true nature of the conflict and the hollowness of theJapanese interpretation. Webb goes on to detail that while Hata was incommand in Central China, the stated policy of the Japanese Government
16

17
18

International Military Tribunal for the Far East, Judgment, 4 November 1948, p. 1154(‘Majority judgment’) (https://www.legal-tools.org/doc/09f24c/).
The President’s Judgment, pp. 315-28, see above note 1.
Ibid., p. 315 (PX256, T3451). In all references, PX and DX refer to the prosecution and thedefence exhibits respectively. T refers to the page of the trial transcript, where the quotecited by Webb appears or, as the case may be, where the exhibit in question is introduced.
Further footnotes will provide, in parentheses, only the references to the exhibits and transcript where the quotation can be found. The transcript itself is available in the ICC Legal
Tools Database.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

was that they would continue military operations until the “National Government was “completely annihilated.””.19
Turning to Hata’s role as the Army Minister from 1939, Webb’s discussion again highlights the vagueness of the conclusions of the majority
as to the grounds of Hata’s liability. Webb cites records of interrogations,quotes Hata’s own words in his official capacity, refers to the testimony of
witnesses, and provides exact dates of relevant evidence. For example,
Webb provides a lengthy quotation from Hata’s statement at a committee
meeting of the Imperial Diet on 22 March 1940, that because of the “antiJapanese policy” of the Nationalist Government (that is, refusing to surrender or be defeated on the battlefield), “Japan is now fighting what one
may call a “Holy War”” to bring about peace in Asia.20
An “anti-Japanese policy” in the absence of a Chinese armed attack
against Japan of course cannot serve as a justification for a war in selfdefence. The argument that the aim of aggression is to bring about peacealso cannot serve this purpose. In other words, Webb demonstrates Hata’s
understanding that what the latter termed the Japanese war against China
was in pursuit of national policies. As such, per Webb’s definition, it constituted aggression. Accordingly, Webb notes that Hata also argued thatJapan should ignore the Nine Power Treaty and should focus on overcoming any resistance to “the establishment of the new order in East Asia”.21
Webb refers to Hata’s own testimony that, because he had studied international law, he knew that the war in China was a violation of the treaty.
This is of course a crucial admission. Hata stated: “There seemed to be noother way out but to resort to armed force when other means failed”.22
The most striking contrast between Webb’s approach and that of the
majority is that Webb finds Hata guilty of aggressive war only in respect
to his activities regarding China. Although Webb details Hata’s key role inthe downfall of Mitsumasa Yonai’s cabinet in 1940 and in proposing
Hideki Tōjō as Prime Minister, he primarily relies on the overwhelming
evidence regarding China. The majority, on the other hand, relies on gen-

19

20
21
22

Ibid. (Prime Minister Fumimaro Konoe’s public statement, 16 January 1938, PX268,
T3564).
Ibid., p. 317 (PX3832, T38017–18).
Ibid. (PX3832, T38021–23).
Ibid., p. 318 (PX256, T3451).

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12. The “President’s Judgment” and Its Significance for the Tokyo Trialeralities to find Hata responsible for conspiring to dominate the AsiaPacific region.
12.3.2. The Case of Hiranuma
Although Kiichirō Hiranuma was a major figure in crucial periods of Japan’s policymaking with regard to the war in China, the majority devotes
a mere 16 lines to justify its finding of guilt on crimes against peace.
Webb, on the other hand, spends 15 pages analysing Hiranuma’s specificcontribution to the Japanese war policies. One of the few specific findings
cited by the majority against Hiranuma is merely that he attended the 29
November 1941 meeting of jūshin (‘senior statesmen’) that advised theEmperor on going to war. Webb, in contrast, actually analyses Hiranuma’s
particular roles from 1931 until the end of the war.
Webb first details the role of the Privy Council in the Manchurian‘Incident’, when Hiranuma was its Vice-President (becoming the President in 1936, before turning Prime Minister in 1939). Webb refers specifically to Hiranuma’s statements during a Privy Council meeting on 13 September 1932 regarding the creation of a puppet ‘independent’ State in
Manchuria, and especially the Council’s readiness to approve the JapanManchukuo Protocol.23 Webb does sometimes merely refer to decisions of
the Privy Council without specifying what Hiranuma said and did, perhaps imputing these decisions to him by virtue of his leadership role as
the (Vice-)President. 24 On the other hand, Webb’s treatment of Hiranuma’s tenure as Prime Minister is replete with specific references to hisstatements and deeds relevant to the charges against him. To cite but a few
examples, Webb recounts how, in order to retain Itagaki as Army Ministerin his cabinet, Hiranuma agreed to seven specific demands of the Army
Senior Chiefs that aimed at putting Japan on a war footing and achieving
victory in China.25
In regard to Hiranuma’s China policy, Webb cites evidence against
him that is surprisingly omitted in the majority’s verdict despite its obvious inculpatory relevance. Webb recounts that on 2 January 1939, Hiranuma told the Imperial Diet that he intended to pursue the previous China
policy at all costs. Webb continues: “There was no alternative, he [Hiran23
24
25

Ibid., pp. 330–31.
Ibid., p. 331.
Ibid., pp. 332–33.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryuma] concluded, but to exterminate those who persisted in opposition to
Japan”.26 Webb also quotes at length the “HIRANUMA Declaration of 4th
May 1939 addressed to Hitler”27 which pledged Japan’s political, economic and military support to Germany in the event of war, and references thecabinet decision of 5 June 1939 to implement this pledge to participate “ina German war against England and France”.28
Webb also details the many cabinet decisions, as well as the Liaison
Conference and other key meetings, in which he participated. In somecases, Webb only mentions the decision that was reached; in other cases,
he states, for example, that “HIRANUMA agreed”. 29 On the most important of these meetings, however, Webb does go into considerable detail.
The majority referenced Hiranuma’s agreement with the conclusion of the
29 November 1941 meeting of the senior statesmen that war with theUnited States was “inevitable”.30 Unlike this statement of dubious inculpatory weight, Webb details Hiranuma’s actual contribution to the discussion.
In response to Tōjō’s assertion during the 29 November 1941 meeting that war with the Western powers could not be avoided, Hiranuma“remarked that he agreed that Japan was equal to a prolonged war with
the United States in spiritual strength but doubted its ability in material
power. He urged that adequate measures and efforts be taken to awaken
patriotic sentiment”.31 The transcripts of the 29 November meeting were
not presented as evidence, but Webb could draw upon a wealth of oral
evidence taken from some of those individuals who had attended themeeting, such as Tōjō, Yonai and Reijirō Wakatsuki, as well as an excerpt
from The Kido Diary, in which Kōichi Kido, the imperial confidant, recorded the gist of the meeting and offered additional explanatory remarks
about it. Webb also considers Hiranuma’s opposition to peace negotiationsin 1945. Among other actions of Hiranuma, Webb recounts how, at a
meeting held on 5 April 1945, Hiranuma said “he was strongly opposed to
26
27

28
29
30
31

Ibid., p. 334 (emphasis added) (PX2229-A, T15989–90).
Ibid., p. 337 (the full text of the Hiranuma Declaration can be found in Telegram fromAmbassador Ott in Tokyo, to State Secretary von Weizsäcker, 4 May 1939, PX503,
T6104–06).
Ibid., p. 339
Ibid., p. 340.
Majority judgment, p. 1156, see above note 16.
The President’s Judgment, p. 342, see above note 1.

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12. The “President’s Judgment” and Its Significance for the Tokyo Trial

any advocacy for peace and cessation of hostilities and so there was no
way out but to fight to the end”.32
Webb has thus provided specific factual findings and evidence tosupport his analysis of Hiranuma’s role. He concludes that as President of
the Privy Council, Hiranuma overrode objections to Japan’s aggression in
Manchuria and co-operated with the government and army initiatives to“bring Manchuria under Japanese military, political, economic and industrial control for Japan’s benefit”. 33 These actions, Webb demonstrates,
constitute waging aggressive war against China in pursuit of national interests. Webb then concludes on the basis of factual findings that, when heserved as Prime Minister, Hiranuma played a major part in further waging
war against China.
Webb has also supported his conclusions with Hiranuma’s statements at the senior statesmen and Imperial Conference meetings, and his
opposition to ending the war in 1945. Unlike the majority, Webb has not
only cited but also analysed the statements attributed to Hiranuma at the
29 November 1941 meeting of the senior statesmen to show that, although
he “doubted Japan’s material strength”, he nonetheless counselled for andsupported the intended war.34
12.3.3. The Case of Hirota
No conviction at Tokyo has aroused as much controversy as that of Kōki
Hirota. Defended by the dissenting opinions of Pal and Röling, Hirota has
been portrayed as a martyr to victor’s justice. The failure of the majority
judgment to analyse all the evidence before the Tribunal on Hirota has
made it easier for critics to support the views of Pal and Röling. At thesame time, perhaps no other verdict makes clearer how one’s perspectiveon the evidence might change as seen through the lens of Webb’s draft
judgment.
A review of the findings and conclusion of Webb’s draft judgment
indicates that a reasoned case could have, and should have, been made by
the majority to support their verdict against Hirota. The evidence relied
upon in Webb’s draft judgment also calls into question the attempt by
Röling to explain away Hirota’s role at the centre of Japanese policy32
33
34

Ibid.
Ibid., p. 343.
Ibid., p. 344.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

making in the critical period of 1936 to 1938. It must again be emphasized,
however, that the aim here is not to arrive at a conclusion concerning theguilt or innocence of Hirota or any other of the defendants. Instead, thistreatment of Webb’s judgment aims to both underscore the shortcomingsof the majority judgment and dissenting opinions, as well as show whatkind of case Webb could make to support his verdicts, based upon the evidence before the court.
In comparison with the far more superficial treatments by the majority, Röling and Pal, Webb devotes 20 pages of his draft judgment to aclose analysis of Hirota’s role as Foreign Minister and Prime Minister
through the crucial period from 1933 to 1938. This, Webb shows, was theperiod when Japan’s policy towards China hardened and the foundational
decisions that led to the Pacific War were taken. By virtue of the offices
he held and the policies he pursued, Hirota played a key role in these decisions. Here again, Webb, unlike the majority, takes Hirota’s own words
and deeds as the evidentiary basis for reaching his legal conclusions.
Webb begins by noting that already as Ambassador to the Soviet
Union from 1930 to 1932, Hirota had stated that it should be Japan’s policy to be ready for war, and that the “principal purpose of such policies
was not defense against communism, but rather the conquest of East Siberia”.35 This policy advice clearly indicates an awareness that armed force
was to be used, not in self-defence, but to advance national interests.
Webb also quotes The Saionji-Harada Memoirs and other sources to show
Hirota’s commitment to abrogating the Washington Naval Treaty, a position on which he stated: “We are taking an unconditional stand”.36 Suchevidence provides only the introductory backdrop to the far more detailed
account of Hirota’s actions and intentions regarding the Japanese expansion in China.
Webb begins by noting that Hirota was a member of the Cabinet on
22 December 1933 when it reached a key decision on the independence ofManchukuo. To show that Hirota personally favoured such a policy, Webb
cites Hirota’s speech of 23 January 1934 to the Imperial Diet in which “heacclaimed the establishment of Manchukuo as an independent country”.37
With respect to the Army’s advance into China, Webb provides detailed
35
36
37

Ibid., pp. 345–46 (emphasis supplied) (PX693, T7452).
Ibid., p. 346 (PX3777-B, T37669).
Ibid., p. 347 (DX3237, T29453–54).

Nuremberg Academy Series No. 3 (2020) – page 26412. The “President’s Judgment” and Its Significance for the Tokyo Trialevidence showing that Hirota, as Foreign Minister, had been apprised of
its intentions and preparations. He also cites Hirota’s statements, diplomatic communications, and policy briefs to show that Hirota was actively
engaged in promoting these plans for further Japanese expansion into
China.38
After Japan initiated hostilities in China on 7 July 1937 (the Lukouchiao, Lugou Bridge or Marco Polo Bridge Incident), Hirota supported cabinet decisions for further military activity against China. In a speech
to the Imperial Diet on 27 July 1937, Hirota “blamed China for the incident”,39 and made further statements that were contradicted by the actual
decisions already taken by the Cabinet. Webb cites the 7 August 1937
draft terms of settlement with China that was prepared by Foreign Minister Hirota, the Premier, and Navy and Army Ministers. This draft statedthat “we should be determined to exercise military power on a large scale
and for a long period of time”.40
To cite only some of the most inculpatory evidence considered by
Webb, he notes that when Japan had commenced full-scale military operations in China, Hirota and the Army and Navy Ministers decided on 7 August 1937 that “the principal areas for using military force on land shouldbe Hopei-Chahar and Shanghai”.41 Webb also references a similar speech
to the Imperial Diet on 5 August 1937, where Hirota blamed the Chinese
for the Japanese attack on Shanghai and gave his approval to increasing
Japanese forces and the dispatch of warships there. 42 (The date Webb
identified may be incorrect as the Shanghai Incident broke out on 13 August 1937.)
Webb further provides a detailed account of the Japanese negotiations with the Nationalist Government, showing how the Cabinet, withHirota in a key role, overrode the Army General Staff’s desire to reach asettlement, by insisting on terms that he knew the Chinese would notagree to. Webb cites evidence showing that even the Germans understood
Japan’s policy to be in bad faith and communicated as much to Hirota.
This policy culminated in a decision of the Imperial Conference issued on
38
39
40
41
42

Ibid., p. 349.
Ibid., p. 350
Ibid., p. 351 (PX3735, T37223).
Ibid., p. 352 (PX3735, T37221).
Ibid.

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16 January 1938 that the “Imperial Government will not care for the National Government hereafter”, and would replace the government of China
at the time with one that “will be a worthy coalition with our Empire”.43
To demonstrate Hirota’s position on these ‘epoch-making’ policy
decisions, Webb cites Hirota’s speech of 16 February 1938 to the Imperial
Diet, where Hirota admitted that “Japan had never tried to compromisewith Chiang Kai-shek […] and that Japan had pursued a policy of chastising China in order to change her attitude”.44 Webb again cites The SaionjiHarada Memoirs on Hirota’s attitude, quoting his statement that, because
the Chinese were bluffing, “there was nothing to do but launch the alternative plan of long-term warfare”.45 In other words, war was to be used toadvance national policy goals.
Although Webb continues to detail Hirota’s activities up to the outbreak of the Pacific War, the discussion above should be sufficient todemonstrate that Webb relied upon specific evidence of what Hirota actually said and did in arriving at his factual findings. He also appears tohave done so in a balanced way, noting, for example, that in the 29 November 1941 meeting of senior statesmen, Hirota advised that Japan
should not rush into war, should postpone the attack, and should seek adiplomatic solution after the initiation of hostilities.46
On the evidentiary basis of such factual findings, Webb argues that“[n]o other civilian prime minster, except perhaps HIRANUMA, supported” the militarists with such consistency. 47 To support this conclusion,Webb refers to some of the evidence on which he has made findings, from
Hirota’s advocacy of the conquest of East Siberia, to his position on Manchukuo and the further aims “to dismember China and bring it under Japan’s control […] This was in reality taking part in the waging war
against China”.48 Webb concludes from the disingenuous settlement negotiations with CHIANG Kai-shek and Hirota’s articulation of the necessity

43
44
45
46
47
48

Ibid., p. 358.
Ibid. (PX3737-A, T37295–96).
Ibid., p. 357 (PX3789-A, T37723).
Ibid., pp. 363–64.
Ibid., pp. 364–65.
Ibid., p. 365

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12. The “President’s Judgment” and Its Significance for the Tokyo Trial

for a ‘long term’ war that “[h]e was determined to wage war to destroy
Chiang and get complete control of China”.49
On the other hand, Webb’s balanced weighing of specific evidence
considers the sufficiency of the evidence on responsibility for the expansion of the war in 1941, concluding that although Hirota “did as much as
any civilian to prepare” for the Pacific War, the fact that he at the critical
moment suggested postponement “precludes a finding beyond reasonable
doubt that he initiated the Pacific War”.50
One would scour the majority judgment and Pal’s and Röling’s dissents in vain to find a similar weighing of the evidence and an explicit
expression of the application of the reasonable doubt standard. Webb continues, however, that in relation to waging the Pacific War, when Koiso
became Prime Minister in 1944, “HIROTA advocated the prosecution ofthat illegal and criminal war”.51 Whatever one’s personal conclusion as toHirota’s culpability, there is little doubt that Webb’s verdict provides areasoned decision based upon consideration of the evidence which Webb
deemed relevant to the charges. This, along with other evidence Webb
cites in his general treatment of the developments of these years, presents
the case that the dissenting opinions have failed to answer.
12.3.4. The Case of Kimura
In a brief treatment, the majority judgment characterizes Heitarō Kimura
as a mere accomplice. Webb shows, however, that his roles and responsibilities as an Army general and later as Vice Army Minister were actually
far more substantive. Webb has adduced evidence to show that Kimura
played an active and important role in a number of contexts.
With regard to Kimura’s role in the war in China, Webb notes thatapart from his earlier role as a Major-General in Tokyo, on 9 March 1939,
he was promoted to Lieutenant-General and received a field command in
China. In 1940, Kimura was made Chief of Staff of the Kwantung Armyand served on key committees charged with the economic exploitation ofManchukuo.52 The main thrust of Webb’s analysis, however, details Kimura’s conduct as Vice Army Minister from 10 April 1941. He notes that
49
50
51
52

Ibid.
Ibid., p. 366.
Ibid.
Ibid., p. 414.

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Kimura’s duties in this position included “the control and utilization ofManchurian resources; general mobilization in Korea, Formosa, and theColonies”, and other matters.53
With the outbreak of the Pacific War, evidence considered by Webb
demonstrates that Kimura was involved in actually issuing orders and engaging in correspondence concerning deployments, finance and logistics.
For example, Webb notes that Kimura “countersigned the order issued
immediately after the Imperial Conference on 1st November 1941” notifying field commanders that war “would commence on 8th December
1941”.54 It is also Kimura, Webb recounts, who notified the Foreign Office on 23 January 1942 that Japan would follow the Geneva Convention
on Prisoners of War. While the voluminous evidence presented by Webb
on Kimura’s important role in the mistreatment of prisoners of war bears
more directly upon the war crimes charges, that evidence also shows Kimura was not a mere accomplice, but an individual directly involved inpolicy formulation and implementation at the highest levels.
Webb also makes findings concerning Kimura’s role when Tōjō wasabsent or involved in other matters because of his dual role as Army Minister and Prime Minister. As Webb notes: “Before any important matterswere formulated by the Bureau Chiefs, they had to receive the approval of
the Minister and the Vice-Minister for War and the Bureau could not carryany decision into effect without the approval of the Minister and ViceMinister”. 55 This evidence thus indicates that Kimura had considerable
formal authority in the highest levels of the command structure and policy
formulation. Webb also cites as evidence of Kimura’s policy level role thedispatch of German Ambassador Ott to Berlin in which he claims that “asVice-Minister of War he was one of the principal advocates of GermanJapanese military cooperation”.56
The conclusion that Webb draws from his consideration of the evidence is that, as a field commander of general rank, Kimura “took an active part in the China war”. Further, as Vice War Minister and Command53
54
55

56

Ibid.
Ibid., p. 415.
Ibid., pp. 418–19 (this finding draws upon the prosecution’s summation at T41150, which,in turn, is built on excerpt from Army Minister General Regulations, DX3348, T31658-62).
Ibid. (see telegram from the German ambassadors in Tokyo, Major General Eugene Ott
and Heinrich Stahmer, 17 May 1942, PX1272, T11355).

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12. The “President’s Judgment” and Its Significance for the Tokyo Trial

er-in-Chief of the Burma Area Army, “he took a prominent part in planning, preparing, initiating, and waging war in the Pacific”. Webb also
concludes that Kimura knew these wars were not in self-defence, “particularly from his close association with TOJO”.57 Consideration of theavailable evidence leads Webb to give a reasoned justification for the conclusion about the importance of Kimura’s role and his consequent responsibility for the crimes charged.
12.3.5. The Case of Shigemitsu
Like the conviction of Hirota, the conviction of Mamoru Shigemitsu, diplomat and ultimately Foreign Minister, has aroused controversy andcharges of victor’s justice. As in the case of Hirota, the majority judgment
might appear not to offer an adequate evidence-based analysis or a reasoned decision on his liability. This has provided ammunition for critics
unfamiliar with the evidence before the court. Webb’s account, however,provides factual findings based upon evidence that formed the basis for
his legal conclusion on Shigemitsu’s responsibility under some of thecrimes against peace charges.
Webb first details Shigemitsu’s role as Ambassador to China andthen turns to his actions as Ambassador to the Soviet Union in 1938. In
this capacity, he met with the People’s Commissar for Foreign Affairs on
several occasions and made demands for the withdrawal of Soviet troops
from the west bank of Lake Khasan and so on. On one such occasion, hestated that “Japan has the rights and obligations to Manchukuo to use
force and make the Soviet troops evacuate”.58
Shigemitsu’s next posting, as Webb recounts, was to London as
Ambassador to Great Britain. Webb quotes at length from a series of telegrams that Shigemitsu sent after the outbreak of war in Europe, advisingTokyo on how to take advantage of the German conquest of European colonial powers. The majority judgment, in contrast, has considered none ofthis evidence. Shigemitsu’s telegram of 5 August 1940 conveys the importance of such evidence in assessing his liability:
in order to establish our position in Greater East Asia, it
would be necessary to consider measures for gaining the
maximum benefits at the minimum loss by carrying them out
57
58

Ibid., p. 423.
Ibid., p. 558 (PX754, T7763).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

at the direct expense of small nations (for instance France
and Portugal) (although indirectly it may turn out to be at theexpense of Britain and America) and by avoiding conflictwith other countries so as not to make many enemies at oncebut to dispose of them one by one.59

Röling, in his treatment of civilian government officials, portrays
Shigemitsu as a man who always sought peace, but he fails to consider
such contradictory evidence. To reiterate, the purpose here is not to arrive
at a conclusion about Shigemitsu’s guilt or innocence but to point out theblatant differences between the judgments of Pal, Röling and the majority
on the one hand, and the draft judgment of Webb on the other. Only Webb
fully meets the core obligation of a judge in an international tribunal tobase his or her ultimate decision upon a careful and impartial weighing of
the evidence so as to arrive at sound factual findings to which the relevant
legal norms may be applied.
Shigemitsu claimed that when he became Foreign Minister in April
1943, he did so in order to work for peace. Webb, however, quotes his 27
September 1943 statement on the Tripartite Pact:
The Pact of Alliance shines forth as brightly as ever to illumine our road to victory.....It is well for us to renew.....ourfirm determination to prosecute the common war.....The spirit of Japan who is fighting in East Asia is the spirit of Germany and her allies fighting in Europe.....60

In a similar vein, Webb quotes Shigemitsu’s statement in an articleof 12 December 1944: “on December 11, 1941, the three nations, concluding a new treaty, firmly pledged themselves to fight out the common
war until final victory”.61 Webb also quotes a statement by Shigemitsu of
21 January 1945 in which he extoled Hitler as a hero who would save Europe and pledged that Japan would fight “to the last together with our allied countries at any cost”.62
In arriving at legal conclusions based upon these factual findings,
Webb has again adopted a balanced approach, requiring the evidence toprove the charges beyond a reasonable doubt. Thus, he finds Shigemitsu
59
60

61
62

Ibid., p. 561 (emphasis added) (PX1023, T9713).
Ibid. (emphasis added, ellipses in the original) (quoting PX773, pp. 1–3, introduced at
T7876).
Ibid. (PX828-A, T8066).
Ibid., p. 562 (PX829-A, T8068).

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not guilty with regard to the charges concerning China or the Soviet Union because in these cases Shigemitsu did not go beyond the duties required of him as ambassador in his negotiations and actions.
On the other hand, Webb concludes that because of the policy advice he gave the Japanese Government on how to exploit the German victories in Europe, Shigemitsu “exceeded” these duties. Webb calls particular attention to Shigemitsu’s suggestion, as quoted above, in which he extolled “to attack and plunder the small nations […] who never threatened
Japan”.63 As to Shigemitsu’s role as Foreign Minister, based on the evidence cited, Webb concludes that “[w]hen Japan resorted to war he was as
Foreign Minister a strong advocate of its continuance until final victory.
He was responsible for waging war”. Accordingly, Webb finds him guilty.
12.3.6. The Case of Shimada
A final example is the case against Shigetarō Shimada, Navy Minister in
the Tōjō Cabinet. In its judgment, the majority finds him guilty of conspiracy to wage an aggressive war but devotes only one sentence to justifying this conclusion: “From the formation of the TOJO Cabinet until […]7th December 1941 he took part in all the decisions made by the conspirators in planning and launching that attack”.64 Webb, on the other hand,
spends eight pages discussing Shimada’s role in policy matters and the
conduct of the war in China and the Pacific. While the majority contents
itself with noting that Shimada attended meetings, with no reference
whatsoever to what he said or did at those meetings, Webb refers to much
more specific evidence. For example, Webb states that, “SHIMADA admitted that he […] on 30th November 1941, joined with NAGANO […]in advising the Emperor that the Japanese Navy’s preparations for war
against the United States and Great Britain were adequate and satisfactory”.65 Webb explains that Shimada “also admitted that he, as Minister of
the Navy and Minister of State, at the Imperial Conference on 1st December 1941, joined in making the final official decision to wage war against
the United States and Great Britain and their allies”.66

63
64
65

66

Ibid., p. 567.
Majority judgment, p. 1197, see above note 16.
The President’s Judgment, p. 569, see above note 1 (Affidavit and testimony by Shigetarō
Shimada, DX3565, T34696–704).
Ibid. (DX3565, T34666).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

It is not necessary to detail Webb’s further discussion as the statements just quoted indicate the nature of the evidence on which Webb relied. On the basis of his findings, Webb concludes that “SHIMADA, as
Admiral, played a leading part in the war against China […] and as Navy
Minister he voted for war in the Pacific, knowing that these wars were notin self-defence of Japan”.67
As we have seen, Webb alone has provided a detailed, balanced exposition of the relevant evidence and applied the legal standards he has
clearly articulated to that evidence to justify his conclusions on guilt or
innocence. Röling, on the other hand, relies on a general principle which
he has invented and which has no support in international law. Röling argues that an official who participated in an aggressive war but desired
peace should not be held accountable for his actions in support of thewar.68 Pal, on the other hand, treats all of the accused as a collectivity andfalls back upon discredited principles, such as the act of State doctrine inorder to argue for their innocence.
12.4. Conclusion
The examples discussed briefly above indicate the painstaking manner inwhich Webb has analysed the evidence bearing upon each defendant’s
responsibility regarding the aggressive war charges in his draft judgment.
It also bears emphasis that, because Webb differed from the majority on
the nature of the conspiracy charges, viewing conspiracy as a mode ofliability rather than an independent offence, he has adduced evidence todemonstrate the direct connection of the accused to the charged aggressive conduct. The majority, on the other hand, simply relies on a masterconspiracy narrative to ground the liability of the accused.
In contradistinction to Webb, the individual verdicts in the text ofthe majority judgment almost never quote or cite specific evidence on the
charges, let alone weigh that evidence to justify its conclusions. This is
not to say that the evidence does not exist, but rather that the majority,
unlike Webb, typically fails to analyse it in depth. Webb, in clear contrast
to the majority and the dissenters, devotes hundreds of pages to the individual verdicts. As we have seen in regard to crimes against peace,
67
68

Ibid., p. 577.
Röling’s dissenting opinion, in Boister and Cryer (eds.), 2008, see above note 9, pp. 702–
09 (the original also available on the ICC Legal Tools Database, https://www.legal-tools.
org/doc/38eba7/).

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12. The “President’s Judgment” and Its Significance for the Tokyo Trial

Webb’s analysis of the evidence is extensive, if not exhaustive, and his
conclusions well-grounded on a reasoned weighing of the relevant evidence and arguments. With regard to those charges, Webb could demonstrate the actual involvement of the accused in policy-level decisions on
war as well as their awareness that the war was pursued in implementationof national policies rather than in self-defence. The evidence on these issues was plentiful enough that Webb could reach his conclusions based
upon the actual statements and deeds of the accused rather than relying
only on inferences drawn from circumstantial evidence.
If Webb’s draft judgment had been adopted by the majority, we
would have been provided with a very different perspective from which toview the verdicts against the accused. In the end, Webb’s draft judgment
places overwhelming emphasis on the responsibility of each individual
accused. The majority’s overemphasis on the theory of a conspiracy towage an aggressive war, which occupies such a large portion of its judgment, tends to efface the role of specific individuals in favour of a sweeping narrative that places an abstract collectivity – ‘the conspirators’ – inthe foreground. Webb’s emphasis upon individual roles, authority and responsibility also supports his contention that the ultimate authority in wartime Japan lay with the Emperor. Webb’s clear implication of the Emperor
was likely one of the most important reasons why the majority refused toaccept his draft judgment as that of the Tribunal. Although the judges’ internal memoranda do not clearly indicate why the majority refused to accept Webb’s draft judgment, it is apparent that they differed sharply with
Webb on the legal status and significance of the conspiracy charge. Due tothe critical importance of ‘conspiracy’ in the majority judgment, this is
likely another important reason why Webb’s efforts were in vain. In theend, it seems likely that he chose not to publish his draft as his concurring
opinion because doing so would have implicitly exposed the deep flaws in
the majority’s approach.69
Pal’s dissenting opinion in a sense goes a step further than the majority in abstracting away from individual responsibility. He too often appears to ignore that a trial is about individual guilt, not national guilt or
innocence. His desire to exculpate the Japanese Government or State as a
69

The internal memoranda indicate neither why Webb refrained from putting forward his
draft as a concurring opinion nor why the majority refused to accept it. Further research in
the Webb papers and correspondence may cast light on these issues in the future.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

collectivity overshadows the fact that the IMTFE was a trial of individual
accused persons. For each of the accused, the prosecution had to prove
guilt beyond a reasonable doubt and the judges had the responsibility toprovide a reasoned analysis of the evidence that grounds their conclusionsof guilt or innocence. Pal completely failed in this regard, even with respect to the war crimes charges where he agreed that the act of State doctrine could not be a defence.
Webb, in his draft judgment, fulfils the role of a judge who weighs
the evidence against each defendant on each of the charges against him orher, and provides a reasoned decision in each case. He spared the majority
the embarrassment his draft judgment would have caused if it had been
published as his concurring opinion. Unfortunately, his decision not toadopt it as his concurring opinion has provided posterity with a very incomplete sense of the evidence before the court that, in Webb’s view, justified the convictions of the accused. Webb’s withdrawal of his comprehensive draft judgment thus enabled Pal, and to a lesser extent Röling, todiscredit the trial as a whole in the eyes of many critics.

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13______
Constructing the Historical Legacy of theInternational Military Tribunal for the Far East:
Reassessing Perceptions ofPresident William Webb
Narrelle Morris*
13.1. Introduction
The International Military Tribunal for the Far East (‘IMTFE’) at Tokyo isoften regarded in English language scholarship as the lesser known sibling of the International Military Tribunal (‘IMT’) at Nuremberg. At thetime, one participant suggested that this related to the “[s]cant attention”
paid to the IMTFE compared to the “much publicity and relatively widespread newspaper coverage” of the IMT.1 Another participant suggested
that while the IMTFE was, in fact, “fully and ably covered by world-wide
press and radio services”, it was “[o]vershadowed by the earlier and moresensational Nuremberg trial” and met with “a generally apathetic reaction”, perhaps because it involved relatively unknown accused Japanese,“took place too far away and was too protracted to evoke much public
interest”. 2 Since then, commentators have pointed to the fact that the
IMTFE transcripts and other documents were voluminous, complex andlargely inaccessible in various national archives for decades after the trial,
and that even the majority judgment was not easily accessible until it was
finally published in 1977. Moreover, encouraging the IMTFE to be deemphasized in comparison with the IMT, Richard Minear’s scathing as*

1

2

Narrelle Morris is a Senior Lecturer in the Curtin Law School, Curtin University, Western Australia. She is the Principal Legal Researcher on the Australia Research Council(ARC)-funded project “Australia’s Post-World War II War Crimes Trials of the Japanese:
A Systematic and Comprehensive Law Reports Series”. She also held an ARC grant for
2014–2019 to research the Australian war crimes investigator and jurist Sir William Flood
Webb.
Solis Horwitz, “The Tokyo Trial”, in International Conciliation, 1950, vol. 28, no. 465, p.
475.
George F. Blewett, “Victor’s Injustice: The Tokyo War Crimes Trial”, in American Perspective, 1950, vol. 4, no. 3, pp. 282-83.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

sessment of the IMTFE in 1971 as merely “victors’ justice” in the firstfull-length monograph to be published in English helped to stigmatize thejurisprudential value of the IMTFE for decades.3 The IMTFE was not, ofcourse, forgotten in Japan, where it has undergone sustained and intensive
analysis, although more historical than legal.
As Canadian diplomat and historian E.H. Norman once observed,
the “treasure trove of documentation” created for and by the IMTFE wasperhaps the “most enduring legacy of the tribunal”. 4 With the IMTFE
documents now widely available, as well as translations of Japanese secondary sources, in the last two decades scholars in law and history havetaken up the task of analysing and reassessing the IMTFE with different
modes of analysis. Even so, it remains a difficult process given that othersignificant documents – such as the invaluable private papers of the judges, the prosecution and defence teams, and other trial participants and observers – are scattered all over the world. Despite their value, these documents introduce other difficulties due to their subjective curation: they are
only what their owners chose to create or retain and later make available
to the public. However, the historical legacy of the IMTFE now encompasses much more than simply the documentation created at the time andreleased since; it is a legacy that has been constructed over time by participants and later by scholars.
As a part of the reassessing the historical legacy of the IMTFE, thischapter focuses on perceptions of the IMTFE judges: Sir William F. Webb
of Australia, E. Stuart McDougall of Canada, MEI Ju’ao of China, Henri
Bernard of France, B.V.A. Röling of the Netherlands, Erima H. Northcroftof New Zealand, I.M. Zaryanov of the USSR, Lord Patrick of the United
Kingdom, and John P. Higgins and Myron C. Cramer of the United Statesof America. Section 13.2. examines the construction of perceptions of the
IMTFE judges, identifying that after the IMTFE concluded, some judges
more than others took up the opportunity, or had more of an opportunity,
to shape those perceptions. Section 13.3. then turns to focus on the Australian judge and President, Sir William Webb. While all of the judges
have received criticism from time to time, perhaps none have received
34Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial, Princeton University
Press, 1971.
E.H. Norman, Hābāto Nōman zenshū [Writings of Herbert Norman], Genji Ōkubo (trans.),
Iwanami Shōten, 1977, vol. 2, p. 391, quoted in John Dower, Embracing Defeat: Japan in
the Aftermath of World War II, Penguin, 1999, p. 450.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webbsuch sustained criticism as Webb. Yet, as the section demonstrates, thiscriticism is distinctly at odds with how Webb has been portrayed as a
judge in Australia. Section 13.4. thus calls for the consideration of the often overlooked broader context of Webb as a person and as a judge, andparticularly of the extraordinarily difficult role of presiding over thatunique tribunal. Sections 13.5. and 13.6. then examine the emergence ofprivate criticism of Webb by the judges and publicly thereafter by scholars,
respectively. It is argued that, in the decades since the IMTFE, much of
the criticism of Webb has been uncritically repetitive, with little, if any,
consideration of the original context in which it was made or what evidence there was for it.
This repetitive criticism of Webb in the literature has thus overshadowed Webb’s actual, and potential, contributions to the developmentof international criminal law in Tokyo. While Webb is well known for his
brief separate opinion, and particularly its pointed commentary on theEmperor, he in fact drafted 658 pages of judgment that, at the very end, he
regrettably decided not to submit. This draft judgment, along with his individually-collated case notes for each accused, lies in his papers at theAustralian War Memorial. 5 The draft judgment provides an intriguing
glimpse into how it might have served as a counterpoint to the majority
judgment and the other separate concurring and dissenting judgments, had
it been submitted. As David Cohen and Yuma Totani have recently observed, Webb’s close attention in his draft judgment to examining andweighing the evidence against each accused individual in order to justify
his findings amply demonstrates a significant weakness in both the majority judgment and the dissenting opinion of Pal: that their authors did not
fulfil this most basic role and duty of a judge.6 As Cohen suggests in his
chapter in this volume, if Webb’s draft judgment had been accepted by thejudges who formed the majority, we would have had a very different view
today of the jurisprudential – and, therefore, historical – legacy of the
IMTFE.7

5

6

7

Papers of Sir William Webb, Australian War Memorial, 3DRL/2481, Series 2: Draft
judgement volumes, 1947-1948 and Series 3: Individual cases, 1945.
David Cohen and Yuma Totani, The Tokyo War Crimes Tribunal: Law History, and Jurisprudence, Cambridge University Press, 2018, p. 390.
See David Cohen, “The “President’s Judgment” and Its Significance for the Tokyo War
Crimes Trial”, chap. 12 above.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

13.2. Shaping Perceptions of the IMTFE
Although much remains to be studied at length in relation to the IMTFE,
one topic is the impact that statements or writings by the judges, and thenby scholars, have had in shaping and perpetuating certain perceptions of
the IMTFE, particularly in relation to the judges themselves. John Dower’s prize-winning Embracing Defeat, for instance, is regarded as a foremost work on the post-war Allied Occupation of Japan. In relation to the
IMTFE, Dower suggested that Röling and Pal, the authors of two dissenting judgments, are “the most incisive and best-remembered justices”. 8
Dower was making apparently a subjective judgment about the quality ofthese judges’ contributions, and it was that quality that made them the“best-remembered”. It must also be recognized, however, that Röling and
Pal themselves chose to remain engaged with the historical legacy of the
IMTFE and created the opportunities to be best remembered. For somedecades after the war, both judges remained prominent figures in relation
to the IMTFE, with Pal especially so in Japan. Both gave speeches andinterviews and published their thoughts. Röling, in fact, published hundreds of works, many of which mentioned the IMTFE.9 Webb, by contrast,
gave no public speeches and his only publication on the IMTFE is a brief
introduction in 1971 to David Bergamini’s Japan’s Imperial Conspiracy,
published the year before Webb died.10
In addition to public exposure, the length of time that the judges had
to contribute to the IMTFE’s historical legacy varied enormously. Röling\
was the youngest of the judges during the trial and the second last to passaway in 1985, as shown in Table 1. Thus, he had significantly more opportunity to shape the IMTFE’s historical legacy than, say, Northcroft,
who died in 1953, only five years after the trial concluded.

8
9

10

Dower, 1999, p. 465, see above note 4.
See, for example, Röling’s bibliographies in Paul J. Teunissen and J.F.A. Doeleman, “Bibliography”, in Robert J. Akkerman, Peter J. van Krieken and Charles O. Pannenborg (eds.),
Declarations on Principles: A Quest for Peace, A.W. Sijthoff, 1977, pp. 383-403; and Wil
D. Verwey, “Bert V.A. Röling (1965–1985)”, in The Moulding of International Law: Ten
Dutch Proponents, T.M.C. Asser Instituut, The Hague, 1995, pp. 65-68.
William F. Webb, “Introduction”, in David Bergamini, Japan’s Imperial Conspiracy: How
Emperor Hirohito led Japan into war against the West, William Morrow and Co., New
York, 1971, pp. ix-xiv. Webb also corresponded with Robert J.C. Butow, which informed
Butow’s Tojo and the Coming of the War, Stanford University Press, 1961, pp. 526, 551.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webb
Judge:

Year of Death:

Northcroft

1953

Higgins

1955

McDougall

1957

Cramer

1966

Pal

1967

Patrick

1967

Webb

1972

MEI

1973

Zaryanov

1975

Jaranilla

1980

Röling1985

Bernard1986

Table 1: Judges’ year of death in order after the conclusion of the IMTFE.

In fact, Röling’s most revelatory remarks on the IMTFE appeared in posthumous publications in 1986 and 1993, by which time no judge was alive
either to be scandalized or to controvert his claims.11
While many topics could be assessed through their historiographicaldevelopment in literature on the IMTFE, an interesting one is the perceptions of the judges: particularly, how certain observations about the judges
came to be made, what evidence there is for them, and what the subsequent trajectory of these observations is through the literature. An example of a lingering general observation is that Pal was the only judge withexperience in international law. This was perhaps because his biographicalsketch – which Pal himself likely provided for public distribution – mentioned that he joined the International Law Association in 1937.12 Defence
11

12

B.V.A. Röling, “Introduction”, in Chihiro Hosoya, Nisuki Andō, Yasuaki Ōnuma andRichard H. Minear, The Tokyo War Crimes Trial: An International Symposium, Kodansha,
Tokyo, 1986; and B.V.A. Röling and Antonio Cassese, The Tokyo Trial and Beyond: Reflections of a Peacemonger, Polity, Cambridge, 1993.
General Headquarters, Supreme Commander for the Allied Powers, Civil Information and
Education Section, Press Release, 23 October 1946, p. 4, in University of British Columbia
Library Rare Books and Special Collections, David W. Conde fonds, RBSC-ARC-1135,
File 30-16. This profile of Pal was reprinted in the Nippon Times, 21 November 1946.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

lawyer George F. Blewett, writing in 1950, described Pal as “the only
deep student of international law on the bench”.13 Minear in 1971 questioned how many of the judges had any background in international law
and then answered: “[t]he answer is one: Justice Pal”.14 Dower, drawing
upon Minear, held up Pal as the only judge with “significant experience”
in international law.15 Many other scholars have repeated this claim. Yet,as Nakazato Nariaki has recently shown, Pal had virtually no experience
in international law, had not produced any prior writings on internationallaw, and, in fact, had little judicial experience on the bench.16 To correctly
answer Minear’s question, none of the judges had a background in international law. As Webb reported to the Chief Justice of the High Court ofAustralia in early 1946, it was unfortunate that “not one of us can becalled an expert in international law. I was hoping that at least one of thejudges would be a professor of international law”.17 In fact, as Yuma Totani has pointed out, Webb was “one of the few jurists of his time who had
extensive knowledge, experience, and insight into matters related to war
crimes”.18
13.3. Contradictory Views of President William Webb
This chapter does not focus on Röling or Pal, however, but on the construction of the historical legacy and perceptions of Webb. Traditionally,
commentators have been ultra-critical of Webb, raising his allegedly poorand biased behaviour in court, inadequate leadership of the bench, souring
relations with the other judges, and the low quality of his legal thinking
and jurisprudence. Common terms that have been used to describe Webb
include “testy and irascible”,19 “childish”,20 “acerbic”,21 “proud and arro-

13
14
15
16

17

18

19

20

Blewett, 1950, p. 290, above note 2.
Minear, 1971, p. 86, above note 3.
Dower, 1999, p. 465, above note 4.
Nariaki Nakazato, Neonationalist Mythology in Postwar Japan: Pal’s Dissenting Judgment at the Tokyo War Crimes Trial, Lexington Books, 2016, pp. 96-97.
Letter from Webb to Chief Justice John Latham, 17 April 1946, in National Archives ofAustralia (‘NAA’), M1418, 3.
Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of WorldWar II, Harvard University Asia Centre, 2008, p. 42.
Gordon Ireland, “Uncommon Law in Martial Tokyo”, in The Yearbook of World Affairs,
1950, vol. 4, p. 66.
Ibid.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webbgant”,22 and “domineering”.23 He has also been called “an isolated figure,
hesitant, [and] authoritarian”. 24 R. John Pritchard at least gave somemeasured praise to Webb, when he observed that, on the one hand, “SirWilliam Webb, by all accounts, was coarse, ill-tempered, and highly opinionated”, but, on the other, “[h]e was hard-working and endeavoured to be
conscientious”.25 As James Sedgwick has pointed out, the “overbearing
caricature” of Webb in Japan is “so entrenched in the historiography that
it is rarely questioned, let alone explained. His domineering behaviour incourt is dismissively chalked up to an innate tetchiness”.26
Yet, what is also rarely questioned, let alone explained, is the radical difference between this “overbearing caricature” attributed to Webb inJapan and how Webb was, and is, characterized as a judge in Australia,
which he was from his appointment to the Supreme Court of Queensland
in 1925 until his retirement from the High Court of Australia in 1958. Upon Webb’s appointment as Chief Justice in Queensland in 1940, for instance, the eminent Australian Law Journal recorded:
His equable and kindly temperament has made his relations
with the Bar uniformly agreeable, and should ensure asmooth and harmonious conduct of the work of the Supreme
Court in the future.27

Upon Webb’s death in 1972, Chief Justice Garfield Barwick of theHigh Court of Australia remarked upon his harmonious work with colleagues and said:[i]n his judicial work, as well as in his social contacts, Sir
William was equable and friendly, thoughtful and generous
in his attitudes. On the Bench he was always attentive, most
21

22

23
24

25

26

27

Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes
Trials, Collins, 1989, p. 312.
Eīji Takemae, Inside GHQ: The Allied Occupation of Japan and Its Legacy, Continuum,
2002, p. 240.
Totani, 2008, p. 42, above note 18.
Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal,
Oxford University Press, 2008, p. 82.
R. John Pritchard, “An Overview of the Historical Importance of the Tokyo War Trial”, inHosoya, Andō, Ōnuma and Minear, 1986, p. 91, above note 11.
James Burnham Sedgwick, “A People’s Court: Emotion, Participant Experiences, and theShaping of Postwar Justice at the International Military Tribunal for the Far East, 1946–
48”, in Diplomacy & Statecraft, 2011, vol. 22, no. 3, p. 491.
“Mr. Justice Webb”, in Australian Law Journal, 1941, vol. 14, p. 118.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

courteous, direct in his questioning and his contribution toargument. He had a lively sense of humour and was always
kindly in its employment.28

Similarly, in the valediction offered upon Webb’s death, Chief Justice Mostyn Hanger of the Supreme Court of Queensland observed of theprevious incumbent of his role:
we remember Sir William as a man with a warm heart and aman of unfailing courtesy, always considerate of thosearound him, and treating the most humble of us, it seemed,
as if we were at least his equals. Irritated he must have felt attimes, and angry he must have been at times; but in all theyears that I knew him – and they extend over more than 40 –I never saw any outwards sign of either.29

Other speakers at the Supreme Court valediction ceremony also remarked on Webb’s judicial character, mentioning his “humility”, “kindness”, “consideration”, “humanity”, “kindly courtesy”, “dignity” and“graciousness”.30 While a certain amount of flattering tribute is to be expected upon the appointment or the death of a judge, more disinterested
observers since have remarked positively upon Webb’s judicial character.
The historian of the Bar Association of Queensland described Webb as:a model of polite, courteous behaviour; he was patient andunderstanding; he did not easily ruffle, but would sit coolly,
unconcernedly through the heated argument, smiling gently,
his brown eyes alert and at the end of the proceedings, give acalm reasoned answer to the problem, an answer freed fromthe temperamental, emotional involvement of the parties
concerned.31

Even a critic who described Webb as a “competent but not outstanding lawyer, who made no particularly memorable contribution to the work
28

29

30

31

Chief Justice Garfield Barwick, “The Late Sir William Webb”, in Commonwealth Law
Reports, 1972, vol. 127, pp. v, vii.
Chief Justice Mostyn Hanger, Valediction to Sir William Flood Webb, KBE, LLD, Recordof Proceedings, Full Court of the Supreme Court of Queensland, Brisbane, 15 August 1972,
p. 1, in Justice William Webb biographical kit, Supreme Court of Queensland Library.
Mr. Nixon, Mr. Brennan, and Mr. Crouch, Valediction to Sir William Flood Webb, KBE,
LLD, Record of Proceedings, Full Court of the Supreme Court of Queensland, Brisbane,
15 August 1972, pp. 2-3, in Justice William Webb biographical kit, ibid.
W. Ross Johnston, History of the Queensland Bar, Bar Association of Queensland, 1979, p.
82.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webbof the High Court” of Australia specifically attributed Webb’s career successes to a “proven ability to persuade sometimes difficult colleagues towork together in harmony”.32 So, in all, this characterization is completely
at odds with the dominant view of Webb’s conduct as a judge in Tokyoand particularly Webb’s interactions with the other IMTFE judges.
13.4. Webb and the Role of the President
When analysing the differences, and explanations, of these contradictory
views, one should consider the broader context of Webb’s roles and experiences during the war, at the IMTFE, and in Japan, rather than simply
dismiss him in isolation as someone who suffered from “innate tetchiness”.33 Both personally and professionally, presiding over that tribunal
was not an easy job, which many critics have seemed willing to overlook
while deeming Webb to be ill-suited for and, in fact, damaging to the role,
if not the IMTFE as a whole. This broader context undoubtedly helped toshape him as a judge and president, but is often disregarded, likely as
there have been few studies of Webb as a judge (especially compared to
Pal and Röling), and certainly no biography to date.
Prior to his appointment, Webb had worked industriously during the
war in multiple judicial and extra-judicial roles for the Australian and theQueensland governments, with frequent interstate and international travel
and little vacation time. Then, like the other IMTFE judges, he accepted
an overseas judicial posting that he thought would run to a few months,
perhaps six, but eventually ran for closer to three years. He had to live indevastated Tokyo under the Allied military occupation, and was mostly
dependent on the co-operation of the occupation authorities for housing,transport and other needs. Although he had just been appointed as a judgeof the High Court of Australia – the pinnacle of judicial appointments –his professional career at home was effectively on hold for the interim.
Moreover, Webb had to live without his wife (at least until Lady Webb
was finally permitted entry in April 1947) and family, missing (amongst
other events) birthdays, anniversaries, the marriage of a child, the engagement of another child, and the birth of his first grandchild.

32

33

B.H. McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure, Butterworths, 1989, p. 327.
Sedgwick, 2011, p. 491, above note 26.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Webb was the longest serving and most experienced judge to be appointed to the IMTFE, having been first appointed a judge in 1925. He
was also the only judge accustomed to being the chief justice of a court,
which he had been since 1940.34 Although the jurisdiction was novel, it islikely that Webb brought his experience as a chief justice to bear on theway that he regarded the role of IMTFE president and thus sought to function. As president, Webb seems to have regarded himself as primus interpares (first amongst equals), seeking to lead, guide and mediate cooperation among the judges. Writing to the judges in mid-1948, when the
judgments were being drafted, he observed, for example, “[a]s President I
think it is my duty to take the lead in suggesting what we should do with
the Accused”.35 Like most chief justices in Australia, his actual powers aspresident were fairly limited,36 although the ‘soft’ power of possessing thesole microphone on the bench cannot be overlooked. Yet, the dominanceof his voice in the proceedings has often meant, both at the time and since,that Webb is treated as synonymous with the IMTFE in relation to criticism.
The bench of 11 international judges was, without a doubt, the largest Webb had ever had to work with, let alone preside over. Webb was certainly aware early on of the difficult task he faced in holding together thenumerous and diverse judges, who had varying legal, jurisdictional andcultural backgrounds, including some with little judicial experience. Someof the judges did not speak English. They all had, however, their own (often nationally-dependent) views on matters such as jurisdiction, matters oflaw, trial procedure, judicial protocol, and the course of proceedings. To
further complicate matters, the trial itself, as shaped by the indictment,
was sweeping in scope. Problems with translation and interpretation be34

35

36

Apart from the United States Justice Higgins – ordinarily, Chief Justice of the Massachusetts Superior Court – who quickly resigned in June 1946 and was replaced by Justice
Cramer.
Letter from Webb to ‘General’, 9 June 1948, in Papers of Sir William Webb, Series 1: The
International Military Tribunal for the Far East, 1946-48, Wallet 9, above note 5.
The Charter of the IMTFE granted only one special power to the president in that Article
4(b) provided that in the case that the votes of the members of the tribunal on decisions
and judgments were evenly divided, the “vote of the President shall be decisive”: Charterof the International Military Tribunal, issued 26 April 1946, reprinted in Neil Boister andRobert Cryer (eds.), Documents on the Tokyo International Military Tribunal: Charter,
Indictments and Judgments, Oxford University Press, 2008, p. 7 (also annexed to this volume).

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webb

tween English and Japanese, as well as several other languages, were analmost daily issue. While some of the prosecution and defence counsel
were competent and diligent, others were regarded as inferior, and theirwork detrimental to the proceedings. Given the inevitable highly politicized nature of the IMTFE, Webb also had to deal with early attempted
political interference, constant VIP visitors, and manage the press while
trying to be publicly impervious to criticism as the trial dragged on.
Webb knew that he was sometimes not in the best frame of mind,
telling Lady Webb: “[f]requently I am in a tempestuous emotional condition, which is a bad thing for the president of any court”.37 He wrote:
I have an immense amount of worry […] I have to keep ateam of eleven together and to avoid saying one thing thatthey disapprove. The other day I said something whichcaused a titter and one judge immediately wrote me a note ofprotest. Any attempt to relieve the dullness of the proceedings is met that way. […] Then, there are all sorts of ‘caves’,
to use the expression of one judge who seems to be a masterat making them. If I consult judges on the bench who are
English-speaking, I am accused by the foreigners of making
an Anglo-American or a British ‘bloc’. Yet, I don’t think anyof them dislike me, but they make my position very difficult.38

13.5. Private Criticism of Webb by the Judges
Webb’s attempts at leadership, guidance and mediation were soon rebuffed by the other judges. If he expected particular support on the basisof shared language, culture, history or legal commonalities from the British Commonwealth judges, he did not receive it. Rather, Patrick andNorthcroft formed, in Northcroft’s own words, a “United Kingdom-New
Zealand bloc of two”, which eventually became, with the drawing in of
McDougall from Canada, a core bloc of three who dominated.39
The reasons for their personal and professional antagonism towards
Webb are complex, and remain to be explored at length, but the level of it,
37
38
39

Letter from Webb to Lady Webb, 1 July [no year but likely 1946], in NAA, M1418, 5.
Ibid.
Letter from Northcroft to Sir Michael Myers, 19 September 1946, quoted in Ann Trotter,“Justice Northcroft (New Zealand)”, in Yuki Tanaka, Tim McCormack and Gerry Simpson(eds.), Beyond Victors’ Justice? The Contemporary Relevance of the Tokyo War Crimes
Trial, Martinus Nijhoff, 2011, p. 83.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

at face value, appears to be high. The three justices certainly actively maligned Webb to their respective governments, and eventually side-lined
him from the development of the majority judgment. In one letter home,
Patrick, for example, called Webb a “quick-tempered turbulent bully”,
who had “antagonised every member of his Tribunal”, thereby frustrating
its purpose. 40 In similar correspondence home, Northcroft stated that
Webb had an “unfortunate manner of expression, generally querulous, invariably argumentative and frequently injudicious”. Moreover, Webb was“often either, and sometimes both, hostile and unreceptive of our [thejudges’] suggestions or incapable of understanding their purport or purpose”.41
Webb had become hamstrung as president: caught between a ‘bloc’of judges who did not respect him and would not accept anything otherthan their viewpoints being expressed unanimously by the bench, and thesmaller ‘bloc’ of dissenting judges – principally Röling and Pal – whom
he could not, understandably, do much to control. Although antagonism
certainly descended on all sides to personal attacks from time to time,
much of the discordant squabbling seems to have been about controlling
not only how the proceedings progressed, but also the future historicallegacy of the IMTFE, that is, the impact that the IMTFE would have –whether positive or negative – on the process of developing international
criminal law already begun at Nuremberg.
It may never be known whether the criticisms of Webb voiced byPatrick, Northcroft and McDougall in their letters home were valid andheartfelt, or – given the timing – exaggerated as part of a concerted plan
to convince their respective governments to have Australia remove Webb,
leaving them to take charge of the proceedings and, possibly in their view,
better control of the dissenting judges. It is curious, though, that Northcroft, perhaps the most vehement of the trio apparently opposed to Webb,
did not reiterate his criticism of Webb when later given the precise opportunity. In 1949, Northcroft wrote a letter and a memorandum reporting on
the IMTFE to the New Zealand Prime Minister. Though specifically asked
to address the choice of president, Northcroft did not even mention Webbby name. He responded only that the choice of the president for an inter40

41

Copy of letter from Patrick forwarded to the Lord Chancellor, circa early 1947, pp. 2, 6, in
the UK National Archives (‘TNA’), LCO 2/2992.
Copy of letter from Northcroft to Chief Justice forwarded to the Lord Chancellor, 18
March 1947, p. 2, in TNA, LCO 2/2992.

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Far East: Reassessing Perceptions of President William Webb

national tribunal should be made “solely with reference to especial suitability” and that “[c]onsiderations of national prestige, or even of national
jealousy, should not become the dominating factor in the choice of a President”.42 The former remark could be interpreted that he had not foundWebb to be especially suitable as president. But the latter remark, if directed at Webb, would appear somewhat odd, given that national prestige
or national jealousy had nothing to do, as far as we know, with why General Douglas MacArthur selected Webb as the president. They did, however, relate to the alleged reason that MacArthur had passed over Northcroft to be acting president during Webb’s absence in late 1947, eventually settling the position instead on Cramer: the “minor status of Northcroft’s court” and the “insignificance of New Zealand as a world power”.43
13.6. The Emergence of Public Criticism of Webb
While private correspondence written by the judges containing criticism
of Webb did not emerge publicly for some time, some public criticism of
Webb appeared during the trial, often from within the IMTFE. Several
prosecution and defence counsel had prominently clashed with Webb during the proceedings. American defence counsel Owen Cunningham, forinstance, had “bruising encounters” with Webb,44 with Cunningham later
reminiscing that, although they were friendly outside, the two of them had“fought like tigers in the courtroom”.45
Cunningham particularly provoked the judges with his address to
the International Law Section of the American Bar Association in Seattle
on 7 September 1948 – before the verdicts were handed down – tellingly
entitled “The Major Evils of the Tokyo Trial”.46 Cunningham’s address
42

43

44
45

46

Letter from Northcroft to the Prime Minister, 17 March 1949, p. 2, in Erima Northcroft
Collection, MacMillan Brown Library, University of Canterbury, MB1549, 112636.
Conversation with MacArthur reported in message from Alvary Gascoigne, United Kingdom Liaison Mission in Japan, to Foreign Office, no. 1500, 11 November 1947, in TNA,
FO 371/63820.
Brackman, 1989, pp. 375-76, above note 21.
Interview with Owen Cunningham, “Trial of Tojo”, circa 1975, Part 2, Iowa Oral History
Project, Des Moines Public Library (available on the Internet Archive).
Owen Cunningham, “The Major Evils of the Tokyo Trials”, address delivered to the Section of International and Comparative Law, American Bar Association (‘ABA’), Seattle,
WA, 7 September 1948, in the US National Archives and Records Administration (‘NARA’), College Park, MD, Records of the Judge Advocate General (Army), RG153, Gen-

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contained numerous criticisms of the IMTFE, including his assertion thatthe “greatest evil of the Tokyo trials rests in the creation and the composition of the court itself”,47 although he did not elaborate on what he meantby that comment. He also complained that the Tribunal had favoured theprosecution over the defence and defence witnesses were “abused”. Cunningham specifically raised in his address one of Webb’s controversial
public remarks – that a defence witness was “the most stupid witness
heard so far”48 – but without giving any context for it, which will be discussed later.
Despite the personal attack, Cunningham’s address did not apparently concern Webb overmuch. Webb told the other judges that, if theAmerican Bar Association thought Cunningham was guilty of contempt of
court, he “felt sure they would not have listened to him”. He advised themthat he intended to “take no action” against Cunningham.49 Webb wrote
privately: “[p]ersonally I have no feeling against him. I would be concerned only if I were guilty of the charges he made against me”.50 Cunningham later revealed that when he met Webb after returning to Japan,
Webb said: “Owen, officially I must reprimand you for your speech at Seattle, but personally I thought it was a great speech”. 51 However, after
Cunningham subsequently made certain admissions in writing to the
IMTFE,52 he was barred on 13 October 1948 from further proceedings
before the IMTFE.53 Still, he continued to protest the action against him
even after the verdicts were handed down.54 Already deeply critical of the

47
48
49
50
51
52
53

54

eral and Administrative Records (Set-Up Files) 1945-1957, 0153-A1-145, International
Tribunal and Judges, Box 124. (Cunningham’s address was a part of an ABA forum on
war crimes trials, which was published in the Proceedings of the Section of Internationaland Comparative Law, ABA, 6-7 September 1948, pp. 30-47.)
Ibid., p. 3
Ibid., p. 2.
Memorandum to All Judges from the President, 9 September 1948, in NAA, M1417, 26.
Letter from Webb to Capt. J. Frank Colbert, 21 September 1948, in NAA, M1418, 3.
Interview with Owen Cunningham, above note 45.
Memorandum to All Judges from the President, 12 October 1948, in NAA, M1417, 26.
As the IMTFE was then recessed awaiting the delivery of the verdicts, the bar was apparently communicated by the IMTFE administration: see, for example, “War Court Bars
Lawyer”, Courier-Mail, Brisbane, 15 October 1948, p. 1.
See, for example, “Cunningham Protests Against Court Action”, Nippon Times, 13 November 1948, p. 2.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webb

IMTFE, this was not an experience that was likely to change Cunningham’s mind.
After the trial concluded in late 1948, criticism of Webb’s characterand performance started emerging in secondary sources in the 1950s, often relying upon the opinions of those like Cunningham, who continued topropagate his views.55 Illinois trial lawyer John Alan Appleman was perhaps the first in 1954 to publish a substantial piece on the IMTFE thatspecifically discussed judicial conduct. Appleman had not participated in,nor attended the trial, and admitted that he did “not pretend to be an expert” in international law.56 In fact, Appleman seems to have had no special interest in the subject, as his list of publications suggests his dominantarea of expertise was American insurance law.57 In addition to an analysisof clearly limited parts of the transcript, Appleman drew on informationfrom several trial participants, including Cunningham. 58 Appleman was
highly critical of Webb, but there are several key problems with his analysis and, as a result, these problems have flowed on into subsequent scholarly work, including by Minear and others, who appear to have acceptedAppleman’s views on judicial conduct uncritically.
Appleman’s overall conclusion about Webb, for instance, was that
there was “definitely observed a tendency of the presiding justice [Webb]
to be autocratic and overbearing in his manner”.59 Appleman opined that:[t]he attitude of the president of the Tribunal throughout towards defense counsel was one not consistent with thestandards commonly observed in courts of the United States.
While American attorneys are expected to observe high principles of ethical conduct and courtesy toward the court, thecourt is considered to have an equal duty toward counsel
55

56

57

58

59

For instance, Cunningham denounced the IMTFE in a speech in 1951 as an “act of tyranny, a prostitution of the judicial processes, an instrument of force and a political inquisition”: “Lawyer Calls U.S. Culprit by War Trial Law”, Chicago Daily Tribune, 19 September 1951, p. 21.
John A. Appleman, Military Tribunals and International Crimes, Greenwood Press, 1971
(first published Bobbs-Merrill Co., 1954), p. v.
See James R. Elkins, “John Alan Appleman (1912-1982)”, Strangers to Us All: Lawyers
and Poetry.
Appleman also thanked “for the greatest help” Capt. James J. Robinson USN, who servedin the International Prosecution Section: see Appleman, 1971 [1954], pp. xi-xii, above note
56.
Ibid., p. 239.

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practicing before it. Arrogance on the part of the court byreason of its exalted position is considered in this country to
be a violation of judicial ethics, and an indication of the
weakness of the man presiding. If this is used as a test of thecompetence of the Tribunal in question, it leaves one withmarked distaste for the judicial tactics employed. The insults
to defense counsel were frequent.60“In view of the vast number of such instances” of insults, Appleman added: “it is surprising that upon two occasions the president was guilty ofcourtesy toward counsel”.61
The key problem with this analysis is that Appleman was, as one
reviewer observed, scrutinizing his subject “with the eye of an American
practitioner”.62 Appleman was holding up the United States’ judicial styleand etiquette as the norm, with no recognition that the IMTFE was neither
an American court nor presided over by an American judge, and that judicial style and etiquette do differ in other countries.63 There is no express
equal duty of judges towards counsel in the common law, as Applemansuggested was the norm. Certainly, insults from the bench to counsel orwitnesses would breach judicial ethics, but there is an enormous difference between unethical judicial behaviour and a judge’s privilege and duty to manage and control his court, as it then was, as he thinks appropriate
in the circumstances. The latter may not be always liked by the parties,
but is a necessary part of being a judge. Justice James Thomas, author of
the standard work on judicial ethics in Australia, points out that:
If judges do not run the equivalent of a tight ship, control iseasily lost and cases tend to run on at great expense to theparties and the state. Courts are robust institutions and it isundesirable that either judges or counsel should be too thinskinned about an occasional skirmish. […] The conduct thatis condemned […] is not the ordinary cut and thrust of courtroom debate or even of occasional duelling when passions
arise.64
60
61
62

63
64

Ibid., pp. 243-44.
Ibid., p. 244, fn. 26.
John H.E. Fried, Review of Military Tribunals and International Crimes, in American
Journal of International Law, 1955, vol. 49, no. 1, p. 115.
Appleman, 1971 [1954], pp. 240-41, above note 56.
James Thomas, Judicial Ethics in Australia, third edition, LexisNexis Butterworths, 2009,
pp. 25, 27.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webb

Indeed, the Charter of the IMTFE expressly provided the Tribunal
with various powers to manage and control the trial, including the“maintenance of order”. Article 12 instructed the Tribunal to:
a.
b.

c.

Confine the trial strictly to an expeditious hearing of theissues raised by the charges.
Take strict measures to prevent any action which would
cause any unreasonable delay and rule out irrelevant issues and statements of any kind whatsoever.
Provide for the maintenance of order at the trial anddeal summarily with any contumacy, imposing appropriate punishment, including exclusion of any accusedor his counsel from some or all further proceedings, but
without prejudice to the determination of the charges.65

Moreover, Rule 3 of the Rules of Procedure provided that “the Tribunal,
acting through its President, shall provide for the maintenance of order at
the trial” in accordance with the disciplinary powers set out in Article
12.66
As Webb wrote at the time to the chief justice of the High Court ofAustralia: “If I were less firm than I am they [the defence counsel] would
take possession” of the trial.67 Lord Wright of Durley, the chairman of theUnited Nations War Crimes Commission, consoled Webb:
I should not be too disturbed if some people say you are a little abrupt and peremptory in dealing with objections. You
must keep Counsel in order. Someone said it was like driving
a four-in-hand: if they took charge, it was impossible to say
where it would end, but if you keep them under control
things will go well […] I am quite sure that they could never
have any reasonable grievance.68

As well as trying to hold the IMTFE to an alleged American standard of judicial style and etiquette that did not apply, Appleman’s examplesof Webb’s supposed arrogant and insulting behaviour to the defence most-

65
66

67
68

Charter of the IMTFE, Article 12(a), (b) and (c) (with (d) omitted), above note 36.
Rules of Procedure of the International Military Tribunal for the Far East, issued 25 April
1946, Rule 3, reprinted in Boister and Cryer, 2008, p. 12, above note 36 (emphasis supplied).
Letter from Webb to Chief Justice John Latham, 1 July [no year], in NAA, M1418, 3.
Letter from Lord Wright of Durley to Webb, 29 July 1946, p. 2, in NAA, M1418, 4.

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ly come from the early months of the trial, when Webb would have beenshaping expectations about the conduct of the proceedings.
The next key problem is that these examples are, in any event, poorly characterized as arrogant and insulting. For instance, Appleman described an exchange in mid-May 1946 when Capt. George Furness for the
defence characterized Dr. Ichirō Kiyose’s earlier presentation for the defence as “brilliant”. Appleman reported that Webb “abruptly told him toomit the compliments”.69 But what Webb actually said was “I think you
can omit the compliments. It is quite unnecessary”.70 The giving of an
opinion like this as to the conduct of the trial can hardly be called arrogant
or an insult to the defence.
The day before, in fact, Webb had similarly criticized Chief Prosecutor Joseph Keenan for the style of his remarks before the Tribunal.
Keenan had uttered a 135-word sentence posed as a rhetorical question.71
Webb responded: “Mr. Chief Prosecutor, do you think those rhetoricalphrases are fitting at this juncture?”.72 Webb was not the only person toregard Keenan’s style as problematic: as defence counsel Carrington Williams recorded in his notes from that day, Keenan “fills his remarks withso much that is unnecessary. Useless rhetoric and speechmaking. Prosecution seems bored with him too. Sir William wears constant frown while
such goes on”.73
69
70

71

72
73

Appleman, 1971 [1954], p. 244, above note 56.
International Military Tribunal for the Far East Trial Transcript (‘IMTFE Transcript’), 14
May 1946, p. 196 (https://www.legal-tools.org/doc/f04203/; the entire transcript is available in the ICC Legal Tools Database).
Ibid., 13 May 1946, p. 137. The ‘question’ was:
Mr. President, Members of this International Military Tribunal, can it be that elevennations represented on this Tribunal and in this prosecution, and in themselves representative of orderly governments, of countries containing one-half to two-thirds of the
inhabitants of this earth, having suffered through this aggression the loss of a vast
amount of their resources and deplorable and incalculable quantities of blood due tothe crimes of murder, brigandage and plunder, are not totally impotent to bring to trial
and punish those responsible for this world-wide calamity; that these Allied Nations,having brought about, as they were compelled to do so by sheer force, the end of thesewars of aggression, must now stand idly by and permit the perpetrators of these offices
to remain without the reach of any lawful punishment whatsoever?
Ibid.
Carrington Williams, “The Tokyo War Crimes Trial before the International Military Tribunal for the Far East”, in John Carey, William V. Dunlap and R. John Pritchard (eds.), International Humanitarian Law: Origins, Brill, 2003, p. 114.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webb

Apart from the example about unnecessary compliments between
counsel already discussed, most of Appleman’s examples of Webb’s supposed arrogant and insulting behaviour to support his claim of judicial
incompetence and misconduct are not described; they are merely listed ina footnote to the relevant transcript pages.74 But, (re)viewed as a whole, inthe context of what was happening in the trial (that is, the immediately
preceding events), and from an understanding of the necessity of any judicial bench to manage and control a trial, they simply do not amount toarrogance or insults either by standards then, which were arguably looser,
or today. Moreover, demonstrating how Webb is often conflated with the
IMTFE, one of Appleman’s examples of insults given to counsel is referenced to the majority judgment that Webb read out from the bench, but
certainly did not join in writing.75That Webb was direct, short, brusque,acerbic, tetchy, spoke with asperity, or was sarcastic on occasion is undoubted. As Totani has stated, some of Webb’s judicial colleagues believed that these traits were “neither helpful nor likeable”.76 But these instances do seem to come after some considerable provocation.
Curiously, although Cunningham had mentioned it in his September
1948 address, Appleman did not raise the most infamous comment Webb
did make, which shows the selectivity of his research with the transcript.
As is well known, Webb directed the remark “[t]he Prime Minister is themost stupid witness I have ever listened to” at defence witness former
Prime Minister Mitsumasa Yonai on 22 September 1947.77 The broader
context of this remark, however, is rarely considered by those who raise it
to criticize Webb.
Preceding Webb’s remark, Yonai was being pressed in crossexamination by the prosecution about a note reportedly sent to him in July
1940, when he was prime minister, from War Minister General Shunroku
Hata. 78 Specifically, the prosecution questioned whether the broad contents of the note had been reproduced in a Tokyo newspaper article at the
74

75
76
77

78

Appleman, 1971 [1954], p. 244, fn. 26, above note 56, citing IMTFE Transcript, pp. 196,
2155, 2264-67, 2290, 2511-12, 2517, 2535, 2545, 2740, 2746, 3700, 6091, 16271, 1840809, 21720-23, 38489, and Judgment, vol. 1, p. 17.
Ibid.
Totani, 2008, p. 16, above note 18.
See the remark in: IMTFE Transcript, 22 September 1947, p. 28939 (https://www.legaltools.org/doc/5b2402/).
Ibid., p. 28931.

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time.79 Since Webb pointed out that the note in question had been referred
to in Lord Keeper of the Privy Seal Kōichi Kido’s diary (already in evidence),80 and that a copy of the article was present in the courtroom before the witness,81 the question ought to have produced a relatively quickconfirmation or denial of reproduction. Some six pages of transcript later,
however, Yonai had managed to continue evading the prosecution’s question, even when Webb repeated the question. Yonai read some of thenewspaper article until he suddenly declared he could not read it without amagnifying glass, so one was brought into the court for him.
From the transcript, Webb was clearly getting frustrated by what hesaw as Yonai’s tactics of deliberate evasion, when he remarked: “If Admiral Yonai could read without a magnifying glass, after that he could well
say that he can’t”.82 Two more pages later, when Yonai was still evading
the question, Webb remarked: “That is still not an answer. The Prime Minister is the most stupid witness I have ever listened to”.83 It was almost afurther page later that Yonai read out the relevant section of the article.84
Yes, Webb’s remark was ill-judged and should not have been made,but one can certainly not say it was an observation randomly made about
a witness for no reason and without provocation. The other judges, andcertainly the prosecution, were likely equally frustrated with Yonai’s evasion by that point.
It seems clear that at least some of Appleman’s criticism of Webb’s
remarks from the bench was overblown by the fact that Appleman’s starting point of what is acceptable in a courtroom was misjudged and also
overly delicate, considering actual standards of adversarial courtroom
repartee. However, Appleman certainly selectively casts blame on Webb
as if he were synonymous with the IMTFE. At the beginning of the trial
on 29 April 1946, recalled Carrington Williams, “without air conditioning[…] and large klieg lights85 beating down; the heat was oppressive. Sus-

79
80
81
82
83
84
85

Ibid., p. 28932.
Ibid., p. 28933.
Ibid., p. 28933.
Ibid., p. 28937.
Ibid., p. 28939.
Ibid., p. 28939-28940.
Klieg lights were powerful electric lights used at the time for film-making.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webbpense (and sweat) built up”.86 Indeed, the summer of 1946 in Tokyo was,journalist Arnold Brackman remembered, one of the hottest and most humid on record. “[A]lmost everyone broiled”, he noted, when the lights
went on for filming in the courtroom, which had sealed windows and was
not air-conditioned. Patrick, he thought, was particularly feeling theheat.87 By 20 June 1946, Webb observed from the bench that the “conditions of heat in this courtroom are causing great discomfort to one of mycolleagues who will decline to sit if this lighting is continued at its present
intensity”.88 When Webb temporarily adjourned the trial on 10 July 1946,
he clearly did so on behalf of the bench as a whole, stating:
The Judges have had a conference on the question of airconditioning in this court. We are all finding the conditionsof heat most oppressive. […] One of the doctors has reported,and he supports our attitude. However, we know, without any
doctor’s report, how we feel and how the heat is interferingwith the proper discharge of our duties. […] We are adjourning on the grounds that the conditions of heat are such that
we cannot discharge our [d]uties in the way we think weshould.89

Moreover, when Webb again addressed the temperature of the court on 15
July 1946, he stated that the installation of air-conditioning was “directedby the Supreme Commander, who had the advantage of medical reports”.90 He observed that air-conditioning wasnecessary in this building. This court is situated in the wellof the building, ventilation is almost completely shut out, thecourt is usually crowded and for a considerable portion of
the time we have a blaze of lights more profuse than anything outside Hollywood.91

In these circumstances, it appears quite churlish of Appleman topronounce in 1954 that the “president of the Tribunal seemed much more
86
87

88

89
90
91

Williams, 2003, p. 105, above note 73.
Brackman, 1989, p. 171, above note 21. In fact, in a photo taken in the courtroom in September 1946, a few small windows can be seen tilted open behind the bench: see NARA,
RG238, Box 1, 46-67816.
IMTFE Transcript, 20 June 1946, p. 1087, above note 70 (https://www.legal-tools.org/doc/
6a0e0a/).
Ibid., 10 July 1946, pp. 2262, 2267 (https://www.legal-tools.org/doc/12bb5e/).
Ibid., 15 July 1946, p. 2294 (https://www.legal-tools.org/doc/aa90c8/).
Ibid., pp. 2286-87.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

concerned about his personal comfort than the conduct of the case. He
complained bitterly of the heat, even adjourning court on that account”.92
As the transcript clearly shows, it was for the reason of properly conducting the case that the trial was adjourned and, if the decision was not unanimous amongst the judges, it was certainly not a decision of pique madeby Webb alone for his comfort.
While this might seem an undue attention and focus on this hapless
Illinois trial lawyer who possibly had limited access to the transcript andwho can no longer defend himself, the longer-term problem with Appleman’s work is that it is the basis for a chain of criticism of Webb’s conduct without much, if any, critical analysis of any evidence underpinningAppleman’s conclusions. For example, in his doctoral thesis partially on
the IMTFE in 1957, TSAI Paul Chung-tseng simply repeated Appleman’s
criticism of Webb. Tsai asserted that Webb’s “[i]nsults to defense counsel
were frequent” and, in support, copied Appleman’s footnoted examples.93
TSAI also asserted that defence witnesses were “abused”, but cited only
Webb’s “most stupid witness” remark in support, which was to one witness.94 Appleman’s criticism was also uncritically taken up by Minear in1971. Minear stated that he did “not feel qualified to assess the issue of
judicial etiquette”,95 so he advised that he had explicitly relied upon Appleman and TSAI to support his “sharp” criticism of Webb. 96 Webb,
Minear wrote, “conducted the trial in a manner prejudicial to justice. For
example, abuse of defense counsel was a regular feature of the trial”.97
Since then, other scholars have relied upon Appleman, TSAI and Minear,repeating their claims that Webb abused or insulted defence counsel ordefence witnesses.98 They have often done so without considering what, if
any, evidence lay behind the earlier analyses of judicial conduct.

92
93

94
95
96
97
98

Appleman, 1971 [1954], pp. 240-41, above note 56.
TSAI Paul Chung-tseng, “Judicial Administration of the Laws of War: Procedures in War
Crimes Trials”, unpublished Doctor of Law thesis, Yale University, 1957, chap. VI, p. 33
and F.VI/18, fn. 172.
Ibid., chap. VI, p. 33 and F.VI/18, fn. 171.
Minear, 1971, p. 85, above note 3.
Ibid., pp. x, 83-85.
Ibid., p. 83.
See, for example, Madoka Futamura, War Crimes Tribunals and Transitional Justice: The
Tokyo Trial and the Nuremberg Legacy, Routledge, 2008, pp. 60-61, fn. 47.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webb

In more recent years, scholars have uncritically adopted the criticism now known to have been made privately of Webb by the other judges at the time or subsequently in print, with little consideration of context
or motivation. While the private letters of Patrick, Northcroft andMcDougall are frequently cited, to their number have now been added
Röling, due to his willingness to speak publicly about the inner workingsof the IMTFE and the length of his survivorship after the other judges.
Eleven years after Webb’s death, Röling was hypercritical of Webb at a
public symposium in Japan in 1983, accusing him of a “tendency to seek
positions of power by any available means” and “dictatorial behaviour
towards his colleagues as well as toward the prosecutors and defense
counsel”.99
Yet, as Justice Christopher Greenwood has pointed out, the 1986
book that reproduced Röling’s criticism of Webb at the symposium was“short”, “rather superficial”, and contained “little in the way of really rigorous analysis of the important questions” that Röling had raised.100 As
mentioned earlier, a further book of Röling’s recollections was posthumously published in 1993, albeit based on interviews with Röling in 1977.
When asked if there were “good lawyers” among the other judges, Röling
responded only by pointing out the age difference between himself and“most” of the judges, suggesting – rather offensively – that they wereconsequently “perhaps too old” to realize that “an international court issomething different from a national court and that international law is different from national law”.101 He labelled Northcroft “a judge” but Webb“a political figure”, 102 which has to be a deliberate mischaracterisation
given Webb’s judicial appointments both before and after the IMTFE. He
then described Webb as a “very arrogant and dictatorial man” and a “dictator”.103 Röling’s views are now much repeated, with little considerationof their accuracy decades on from the IMTFE or the ethical propriety of
Röling revealing some of the matters he did about the intimate workings

B.V.A. Röling, “Introduction”, in Hosoya, Andō, Ōnuma and Minear, 1986, p. 17, above
note 11.
100 Christopher Greenwood, “Review of The Tokyo War Crimes Trial: An International Symposium”, in International & Comparative Law Quarterly, 1987, vol. 36, no. 3, p. 687.
101 Röling and Cassese, 1993, p. 29, above note 11.
102 Ibid.
103 Ibid., pp. 30, 52.
99

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The Tokyo Tribunal: Perspectives on Law, History and Memoryof the IMTFE, as well as his insider knowledge of the verdicts and thesentences.
13.7. Conclusion
This chapter has briefly examined perceptions of Webb, highlighting thecontradictions that exist between the generally negative ways that he isportrayed at the IMTFE and the positive views of him as a judge in Australia. It suggests that much of the criticism of Webb overlooks the difficulties and stresses placed on him in undertaking the role of president.
Moreover, it has demonstrated that criticism of Webb’s judicial performance and conduct in the early secondary literature is not actually supported by the evidence put forward. Nevertheless, this criticism has since
been repeated from scholar to scholar and work to work.
This chapter thus argues that what is needed in this new era of analysis of the IMTFE is a fresh start to research on the judges, which somethoughtful scholars are already engaged in. 104 In conjunction with thisfresh start, we need less blanket acceptance of criticism and more consideration of the broader context in which criticism is made, including any
motivations that the judges, counsel or other participants may have had in
voicing criticism of the judges or of the IMTFE generally (or praise forthat matter). And we certainly need more consideration of whether sufficient evidence can be found to support a conclusion, particularly a negative one, about judicial conduct and performance.
It is regrettable and a disservice to the historical legacy of the IMTFE that, no matter what his faults, and there were some, Webb is largely
remembered in relation to the IMTFE only as a rude, incompetent judge
who had a principally deleterious impact on the proceedings. Webb should
also be remembered as a judge of considerable judicial experience, whotook on perhaps one of the most difficult international judicial roles inhistory – one that, in hindsight, few would willingly accept. He was a
judge whose individually-collated case notes against each of the accused
and whose full draft judgment – which he intended to submit as late as 30
September 1948105 – reveal an impeccably careful approach to his judicial
104

See, for example, the contributors to Kerstin von Lingen (ed.), Transcultural Justice at theTokyo Tribunal: The Allied Struggle for Justice, 1946-48, Brill, 2018.
105 Cable from Webb to the Chief Justice [John Latham of the High Court] and the Attorney
General, carbon-copied to General MacArthur, 30 September 1948, in Papers of Sir William Webb, Series 4: Correspondence, 1946-48, Wallet 7, above note 5.

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13. Constructing the Historical Legacy of the International Military Tribunal for the
Far East: Reassessing Perceptions of President William Webb

duties of analysing and weighing the evidence, probably unlike most of
the other judges.
Finally, Webb, unlike some other members of the bench, did notseek even privately to undermine his judicial colleagues or the legacy of
the Tribunal but remained keen to the judicial decorum of portraying positive collegiality upon the bench. After the verdict was handed down, hewrote to the Australian Prime Minister, J.B. Chifley:
The team work [amongst the judges] has been admirable. After two and one-half years of strenuous labor [sic] and muchdifference about important matters of opinion we part elevengood friends. That gives me the greatest satisfaction and I am
sure you will be delighted to hear it.106

It is a cruel irony that Webb’s reward for appropriate judicial behaviour – that he did not publicly or privately criticize his colleagues (except
to his wife, which might perhaps be forgiven) – has meant that their criticism of him has instead taken centre stage in the historical legacy of the
IMTFE.

106

Cable from Webb to Rt. Hon. J.B. Chifley, 16 November 1948, in Papers of Sir William
Webb, Series 4: Correspondence, 1946-48, Wallet 7, above note 5.

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PART IV:
RECEPTIONS AND REPERCUSSIONS OF THE TRIAL

14______‘Substantial Criminal Character’ or‘Lawless Violence’:
Crimes in the Charter of the Tokyo Tribunal and
Their Receptions in Contemporary Japanese
Legal Scholarship
Philipp Osten*
14.1. Introduction
The year 2018 marked the seventieth anniversary of the delivery of thejudgment of the International Military Tribunal for the Far East (‘IMTFE’)in Tokyo. Even though this trial is now widely regarded to constitute a
historic point of origin for modern international criminal law, this anniversary has, interestingly, remained almost unnoticed among Japanese
legal scholars.1 This chapter deals with the reaction of contemporary Japanese legal scholars to the Tokyo Trial, in particular the legal debate in theimmediate wake of the trial. It concentrates on the echo raised by the*1

Philipp Osten is Professor of Criminal Law and International Criminal Law at Keio University, in Tokyo, Japan. Philipp Osten’s main field of research is international criminal
law. He has conducted research on the history of international criminal trials and publisheda book on the Tokyo Tribunal, Der Tokioter Kriegsverbrecherprozeß und die japanische
Rechtswissenschaft (Berliner Wissenschafts-Verlag, Berlin, 2003; Japanese translation by
the author forthcoming). His recent research focuses on the ICC and he has publishedwidely on issues pertaining to general principles of criminal law in the Rome Statute, andits domestic implementation in Japan, Germany and other countries.
As of the time of writing, no Japanese law journal has dedicated a special issue to, or otherwise focused on, this anniversary; a recent special issue of the law journal Hōritsu jihō
on “International Criminal Law Today” (“Kokusaikeijihō no genzai”) did not include any
specific article on the Tokyo Trial (Hōritsu jihō, 2018, vol. 90, no. 10, pp. 7-65). Furthermore, no new monograph on the trial by a Japanese legal scholar was published in this regard. The most recent issue of the journal Keihō Zasshi (published by the Criminal Law
Society of Japan) contains an introductory article on the anniversary of the Tokyo judgment and the international conference held in Nuremberg on that occasion: Philipp Osten[Firippu Osuten], “Tōkyō saiban hanketsu 70 shū-nen kokusai shimpojiumu” [International Conference “70 Years Later: The International Military Tribunal for the Far East”], in
Keihō Zasshi (Journal of Criminal Law), 2020, vol. 59, no. 1, pp. 131-135.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

crimes stipulated in the Charter of the IMTFE, which formed the legal
basis for the prosecution of the major Japanese war criminals and therefore the core legal issue of the trial. Somewhat surprisingly, the initial reaction of Japanese jurists was not muted. To the contrary, a perceptive andsomewhat lively discussion took place, at least during and immediately
after the trial; in fact, those Japanese scholars already anticipated somelegal concepts which are now generally recognized in international criminal law. However, this debate not only remained unnoticed outside of Japan (that is, in Western legal research) for the most part, but is also moreor less forgotten among Japanese jurists today.
The crimes, in particular the notion of crimes against peace and related legal questions, constituted the centre-piece of the scholarly debate
in Japan. To accurately assess the contemporary Japanese reception of thecrimes – that is, the reactions to and scholarly perceptions of the definition and legal substance of the crimes as applied at the IMTFE – thischapter, at its outset, will provide a brief overview of the three crimes falling under the scope of jurisdiction of the Tokyo Tribunal as defined in Article 5 of its Charter: crimes against peace, conventional war crimes andcrimes against humanity (Section 14.2.). It will try to shed light on someof the most significant modifications in the definitions of these crimes, ascompared to the Charter of the International Military Tribunal (‘IMT’) at
Nuremberg. The legal consequences of such particularities in the definitions with regard to the applicability and interpretation of the crimes will
also be outlined.
As regards the ensuing scholarly debate in Japan, naturally, not theentire range of opinions voiced in contemporary Japanese legal scholarship can be covered within this brief study.2 A special focus shall therefore
be put on the views of selected, representative scholars (Section 14.3.),
essentially some of the most influential Japanese criminal law and public
2

For a comprehensive account of the Japanese scholarly debate on the Tokyo Trial, see
Philipp Osten, Der Tokioter Kriegsverbrecherprozeß und die japanische Rechtswissenschaft, Berliner Wissenschafts-Verlag, Berlin, 2003; Philipp Osten [Firippu Osuten],“Tōkyō saiban to sengo Nihon keihō-gaku” [The Tokyo Trial and the Debate among Criminal Law Scholars in Post-War Japan], in Yoshihisa Hagiwara (ed.), Posuto wō shitizunshippu no kōsōryoku [Designing Post-War Citizenship], Keio Gijuku Daigaku Shuppan
Kai (Keio University Press), Tokyo, 2005, pp. 85-103. A chapter depicting the first trial
analysts in Japan is included in Yuma Totani, The Tokyo War Crimes Trial: The Pursuit ofJustice in the Wake of World War II, Harvard University Press, Cambridge, Massachusetts,
2008, pp. 190-217.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshipinternational law scholars of their time, as their discussions are, for themost part, unknown outside of Japan.3
14.2. Crimes in the Tokyo Charter: Definitions, Modifications,
Counts and Judgment
Based on an order by the Supreme Commander of the Allied Powers inJapan, General Douglas MacArthur, the Charter of the IMTFE was drafted by the International Prosecution Section; it was publicized as an attachment to a “Special Proclamation” of the Supreme Commander on 19
January 1946 and constituted the formal legal basis for the establishmentof the IMTFE.4 It was modelled on the Nuremberg Charter and stipulated
three categories of crimes, that is, crimes against peace, conventional war
crimes and crimes against humanity. However, the definitions of thecrimes differed from those in the IMT Charter in several respects. These
alterations have consequently influenced the way these crimes were applied in Tokyo.
14.2.1. Crimes Against Peace
Crimes against peace were the central charge of the Tokyo Trial and constituted the heart-piece not only of the court proceedings, but also of theensuing scholarly debate. Unlike the Nuremberg Charter (cf. its Article 6),
Article 5 of the IMTFE Charter limited the scope of persons to be tried at
Tokyo to those who “are charged with offenses that include Crimes
against Peace”; thus, no defendant was prosecuted without a charge ofcommitting crimes against peace. In line with the overall prosecutorial
strategy, the Charter and thus the Tribunal were construed to try the Japanese leadership primarily for crimes against peace. The ultimate goal of
the trial was to punish Japanese aggression. As a result, nearly all (24 of
the 25 remaining) defendants were found guilty of charges pertaining tocrimes against peace.

34

For an overview of the scholarly debate among German jurists in the wake of the Nuremberg Trial, see Thomas Weigend, “‘In general a principle of justice’: The Debate on the‘Crime against Peace’ in the Wake of the Nuremberg Judgment”, in Journal of International Criminal Justice, 2012, vol. 10, no. 1, pp. 41 ff.
The Charter was amended on 26 April 1946. The Special Proclamation and the (amended)
Charter of the IMTFE (both annexed to this volume) are also reproduced in Neil Boister
and Robert Cryer (eds.), Documents on the Tokyo International Military Tribunal: Charter,
Indictment and Judgments, Oxford University Press, Oxford, 2008, pp. 5-6, 7-11.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

The definition of crimes against peace in Article 5 (a) of the Tokyo
Charter had been constructed on the Nuremberg model,5 with one significant modification: the addition of the words “declared or undeclared” tothe term “war of aggression” in order to underline the understanding thatthe manner in which a war was commenced (or qualified by one of thebelligerent parties) was immaterial to determining its legal character. This
alteration clarified that this crime could also be applied to the undeclared
wars which Japan had conducted over many years, particularly in andagainst China.6
In retrospect, it is interesting to note that a strikingly similar wording has also been adopted in the Kampala definition of the crime of aggression, which is now incorporated in the Rome Statute of the International Criminal Court (‘ICC’) (“regardless of a declaration of war”).7 Arguably, this could be regarded as an indication for a unique impact of theTokyo Charter on the present-day development of this legal concept. In
this respect, the Charter and the related jurisprudence of the IMTFE may
perhaps receive more attention in the near future, considering the activation of the jurisdiction of the ICC on the crime of aggression from 17 July
2018 onwards.8
Furthermore, the term “[international] law” was inserted in the definition (“a war in violation of international law, treaties, agreements orassurances […]”), supposedly to highlight the understanding that thecriminality of aggressive war had been established under international law
itself.9
While the Nuremberg IMT only had four counts for indictment,
there were 55 counts in Tokyo, which were separated into three groups. In
the first and most important group, the prosecution developed 36 counts
pertaining to crimes against peace, reflecting the emphasis placed on thiscategory. Of these 36 counts, five were conspiracy counts and the remain5

6
7

8

9

For a recent analysis of the historical genesis of the concept of crimes against peace, see
Kirsten Sellars, ‘Crimes against Peace’ and International Law, Cambridge University
Press, Cambridge, 2013.
See Osten, 2003, p. 88, see above note 2.
Article 8bis of the amended Rome Statute of the International Criminal Court (‘ICC’), 11
June 2010, ICC-RC/Res.6, Annex I (https://www.legal-tools.org/doc/7b9af9/).
Cf. Resolution ICC-ASP/16/Res. 5, adopted on 14 December 2017 (https://www.legaltools.org/doc/6206b2/).
Cf. Totani, 2008, p. 81, see above note 2.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshiping 31 were substantive counts. Most of these counts were not examinedin court and/or dismissed from the judgment, as the judges consideredthem repetitious and redundant. Thus, out of the 36 relevant counts,
judgment was finally made on only eight counts. The first count was aconspiracy count, epitomizing all charges related to crimes against peace.
It charged, in summation, that there had existed a grand plan or conspiracy to secure domination over the Asia-Pacific region by waging a war of
aggression from 1928 to 1945, and that all accused had taken part in thisplan or conspiracy in some form. This alleged conspiracy against world
peace constituted the keystone of the indictment and was the single mostimportant count in the Tokyo Trial. The court (in its majority judgment)
held that such a (single) grand conspiracy over 18 years did exist.10 It also
upheld seven substantive counts of crimes against peace, namely the waging of wars of aggression against China, the United States and five othernations. While holding that such aggression was criminal, the majority,
however, refrained from providing an express definition of “aggression”.
This, as will be seen, was conceived by critics of the trial as a decisive
legal weakness.
Altogether, the focus on crimes against peace was even higher in
the Tokyo Trial than at Nuremberg.11 With the notion of aggressive war as
its nucleus, crimes against peace was a more problematic and much moredisputed concept than conventional war crimes (and even crimes against
humanity), because it dealt directly with the nature and causes of war, as
compared to specific violations of the laws and customs of war or wartime
atrocities.

10

11

The Judgment of the International Military Tribunal for the Far East is reproduced in R.
John Pritchard and Sonia M. Zaide (eds.), The Tokyo War Crimes Trial: The Complete
Transcripts of the Proceedings of the International Military Tribunal for the Far East in
Twenty-two Volumes, Garland, New York, 1981, vol. 20, p. 49769 (‘IMTFE Judgment’)(https://www.legal-tools.org/doc/8bef6f/). The transcripts are also available on the ICC
Legal Tools Database.
According to Madoka Futamura, War Crimes Tribunals and Transitional Justice: The
Tokyo Trial and the Nuremberg Legacy, Routledge, London, 2008, p. 65, as a consequenceof this heavy focus, the trial was examining “less the way Japan had conducted the war but
more the reasons why” Japan had conducted it.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

14.2.2. Crimes Against Humanity
In contrast to crimes against peace, the novel concept of crimes against
humanity played a minor role in Tokyo and was practically not conceived
as an independent category of crimes.
As described above, the 55 counts charged in Tokyo were separated
into three groups, with two-thirds of the counts pertaining to crimes
against peace (group 1). The remaining counts were indicted as “Murder”(group 2) – which was not provided for in the statute and was eventuallydismissed by the court12 – and as “Conventional War Crimes and Crimes
against Humanity” (group 3, with only three counts). Thus, crimes against
humanity were not dealt with separately but combined with conventional
war crimes. The judgment limited its findings on this last group to only
two counts (Counts 54 and 55). In these two counts, no conceptual or substantial differentiation between war crimes and crimes against humanity
was made.13 The prosecution did not submit evidence to establish specificcrimes against humanity, to the effect that no defendant was convicted ofany (singular) crime against humanity in Tokyo.
Compared to Nuremberg, the most significant modification in thedefinition of crimes against humanity in the Tokyo Charter was the deletion of the wording “[acts committed] against any civilian population”.
Thus, the object (that is, the target) of acts constituting crimes against
humanity under the Tokyo Charter was not limited to civilians, with theeffect that this provision could also apply to inhumane conduct against
combatants. 14 The decisive difference in the concept of crimes against
humanity lies, therefore, in the non-limitation of the scope of persons tobe protected by this notion. The concept of crimes against humanity at
Nuremberg was originally drafted with a view to the prosecution of (ideologically motivated) Nazi crimes, namely crimes against persons who did
not fall in the scope of conventional war crimes, in particular the offend12

13

14

On the murder counts and their treatment by the court, see Neil Boister and Robert Cryer,
The Tokyo International Military Tribunal: A Reappraisal, Oxford University Press, Oxford, 2008, pp. 154-74.
Cf. Yuma Totani, “The Case against the Accused”, in Yuki Tanaka, Tim McCormack, andGerry Simpson (eds.), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited,
Martinus Nijhoff, Leiden, 2010, p. 154, who argues that the two counts should be understood, in substance, as war crimes.
Cf. Bernard V.A. Röling and Antonio Cassese, The Tokyo Trial and Beyond: Reflections ofa Peacemonger, Polity Press, Cambridge, 1993, p. 13.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshiping State’s own citizens or nationals of third States.15 However, by extending the scope to enemy combatants, it became difficult to distinguishcrimes against humanity from conventional war crimes. 16 Considering
these alterations, it is not altogether surprising to see that the indictment at
Tokyo did not charge crimes against humanity committed against Japanese subjects on Japanese territory – which would have been conceivable,
at least theoretically, in view of the colonies annexed by Japan (such as
the Korean peninsula) and its (at that time Japanese) citizens.
Furthermore, the court in Tokyo adhered to the restrictive jurisprudence of the Nuremberg Tribunal on the connexity of this crime with theother two crimes falling under its jurisdiction: the IMT presupposed anexus between crimes against humanity and war crimes or crimes against
peace (that is, a link to an international armed conflict), which further narrowed down the scope of applicability of crimes against humanity.17 By
restricting crimes against humanity to those closely connected with thewar, contrary to the wording “[acts committed] before or during the war”,
practically no pre-war crimes against humanity, that is, inhumane acts
committed in peace-time, could be tried in Tokyo.
Today, a (systematic) attack against any civilian population is regarded as the most significant characteristic and a crucial foundational
element of crimes against humanity.18 Thus, the omission of this elementat Tokyo turned out to be a historical flash in the pan. As no substantial
15

16

17

18

See, for instance, Stephan Meseke, Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Römischen Statut des Internationalen Strafgerichtshofes, Berliner Wissenschafts-Verlag, Berlin, 2005, pp. 11 ff.; Kerstin von Lingen, “Setting the Path for the
UNWCC: The Representation of European Exile Governments on the London International Assembly and the Commission for Penal Reconstruction and Development, 1941–1944”,
in Criminal Law Forum, 2014, vol. 25, pp. 45-76.
Cf. Egon Schwelb, “Crimes against Humanity”, in British Yearbook of International Law,
1946, vol. 23, pp. 178, 215: “In the Japanese trial it is still more true to say that the term
crimes against humanity is merely another description of war crimes”.
Cf. ibid., p. 206: “The Tribunal treats the notion of crimes against humanity as a kind of
subsidiary provision […]. It is, as it were a kind of by-product of war […]. It denotes aparticular type of war crime”.
All subsequent statutory definitions of crimes against humanity in international law haveincluded this element; see, for example, the definition provided in Article 7, ICC Statute(https://www.legal-tools.org/doc/7b9af9/). See also the (identical) definition in Article 3 ofthe draft articles on a Convention for Crimes against Humanity provisionally adopted by
the International Law Commission: UN Doc. A/CN/.4/704, 23 January 2017, Annex I, p.
152 (https://www.legal-tools.org/doc/f6dac0/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

discussion of the concept of crimes against humanity occurred in Tokyoand the court ultimately made no findings on crimes against humanity, thetrial certainly had no precedential effect on the further development of
this notion.
14.2.3. Conventional War Crimes
The notion of conventional war crimes, as such, did not give rise to much
legal controversy at the Tokyo Trial since it could be based on customaryinternational law. Unlike the IMT Charter, the definition provided in theTokyo Charter seemed, at first glance, somewhat undetermined, as it did
not enumerate specific violations of the laws or customs of war. Nevertheless, the criminality of these acts, as such, was not contested, even interms of their legal certainty (that is, sufficient clarity); further, the Nuremberg Charter did not provide a concise, but only an exemplary, definition of war crimes.19
Some of the most infamous wartime atrocities committed by theJapanese armed forces were adjudicated under this category of crime. In
this regard, the most significant legal aspect was, however, the mode ofindividual criminal responsibility (or mode of imputation) which was
adopted at Tokyo for war crimes. The doctrine of command (or superior)
responsibility was applied (inferring on the non-uniform jurisprudence ofcontemporaneous war crimes trials preceding the IMTFE) and further developed at the IMTFE, with a view also to the responsibility of civilian
superiors (as, inter alia, in the Hirota case20). It is here that the court was
perhaps most creative and influential in terms of presenting substantial
legal discourses and perspectives. These cases were repeatedly referred to,as precedents and were extensively discussed in the jurisprudence of thead hoc Tribunals.21
19

20

21

Cf. IMT Charter, Article 6(b): “Such violations shall include, but not be limited to, […]”
(emphasis applied) (https://www.legal-tools.org/doc/64ffdd/).
IMTFE Judgment, p. 49791, see above note 10. Kōki Hirota was Japan’s Foreign Ministerat the time of the massacres committed by the Japanese army in Nanjing and was convicted, inter alia, for his inaction to stop these atrocities.
For instance, the judgment of the IMTFE (In re Hirota and Others) was expressly referred
to, inter alia, in the Čelebići trial judgment of the International Criminal Tribunal for theformer Yugoslavia (Prosecutor v. Delalić, Mucić, Delić and Landžo (Čelebići), Trial
Chamber, Judgment, 16 November 1998, IT-96-21-T, paras. 357-358) and the Akayesu trial judgment of the International Criminal Tribunal for Rwanda (Prosecutor v. Akayesu,
Trial Chamber, Judgment, 2 September 1998, ICTR-96-4-T, para. 633).

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarship

Finally, it should also be mentioned that the IMTFE imposed themost severe punishment – the death penalty – on those convicted of war
crimes, and not on those found guilty solely of crimes against peace. Thissentencing practice is even more noteworthy considering the heavy focus
on crimes against peace in the indictment and the court proceedings. Arguably, this indicates some rudimental reasoning regarding the gravity ofthe different crime categories, which was already apparent in the Nuremberg judgment and also expressed in some separate opinions at Tokyo.22
The possibility of a hierarchy of international crimes in terms ofgravity (and corresponding sentencing principles) is, however, highly disputed even today, with rather conflicting views reflecting in the jurisprudence of the ad hoc Tribunals, and no explicit provisions in the ICC Statute. In any case, it remains rather questionable whether the Tokyo Trial
can provide any precedential guidance in this regard.
14.3. The Contemporary Scholarly Debate on the Concept of Crimes
Already at the outset of the trial, the defence challenged all counts which
went beyond the notion of conventional war crimes. In particular, the legality of ‘crimes against peace’ and, thus, the jurisdiction of the Tribunal
itself was questioned. The defence attorneys claimed that the criminalityof an aggressive war was not recognized under international law; the provisions in the Tokyo Charter stipulating penal sanctions for crimes against
peace would be tantamount to ex post facto legislation and therefore
would violate the nulla poena principle. Furthermore, they argued that anindividual could not be made criminally liable for a war which was waged
by the State (act-of-State doctrine).23
Although the court rejected these motions, it did not present any indepth reasoning of its own regarding these fundamentally important legal
questions. Instead, the majority judgment, besides stating that it was
22

23

Cf. Separate Opinion of President Webb, reproduced in Boister and Cryer, 2008, pp. 63738, see above note 4.
Pritchard and Zaide (eds.), 1981, vol. 2 (The Proceedings of the Tribunalin Open Session),pp. 120 ff., see above note 10. See also IMTFE Judgment, pp. 48436-48436a, see above
note 10. Both are also available in the ICC Legal Tools Database. The leading Japanese
defence lawyer, Ichirō Kiyose, who eventually became an influential politician in post-war
Japan, challenged the jurisdiction of the court already on the fourth day of the trial proceedings (13 May 1946). His famous motion is reproduced in his memoirs: Ichirō Kiyose,
Hiroku Tōkyō saiban [Private Notes on the Tokyo Trial], Yomiuri Shimbun-sha, Tokyo,
1967, reprinted by Chūō Kōrōn-sha, Tokyo, 1986 (cited here), pp. 53 ff.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

bound and empowered by the Charter, simply referred to and relied entirely on the legal reasoning presented in the Nuremberg judgment:
In view of the fact that in all material respects the Charters of
this Tribunal and the Nuremberg Tribunal are identical, thisTribunal prefers to express its unqualified adherence to therelevant opinions of the Nuremberg Tribunal rather than byreasoning the matters anew in somewhat different language
to open the door to controversy by way of conflicting interpretations of the two statements of opinions.24

The aforementioned reasoning of the defence lawyers formed theargumentative basis for some critics of the Tokyo Trial in the ensuing debate. Interestingly, however, the majority of contemporary legal academics in Japan expressed overall positive views of the concept of crimes applied at the trial, in spite of their awareness of many legal shortcomings,
as will be seen.
14.3.1. Criminal Law Scholars
14.3.1.1. Shigemitsu DandōAn affirmative assessment was conveyed, first of all, by Shigemitsu Dandō (1913–2012), the leading criminal law scholar of the time.25 He was an
associate professor of criminal law at the (then Imperial) University ofTokyo at the end of the war, was appointed full professor in 1947, andeventually became the most influential criminal law scholar in post-war
Japan.26 Strongly influenced by German legal doctrine, he also developed
a keen interest in American criminal procedure. 27 He briefly taught at
Keio University in 1974, before being appointed judge at the Supreme
Court of Japan (until 1983). While Dandō avoided being drawn into politically sensitive debates during the war, he was the first criminal law

24
25

26

27

IMTFE Judgment, p. 48439, see above note 10.
For biographic details, see his autobiography: Shigemitsu Dandō, Waga kokoro no tabiji[The Journeys of My Heart], Yūhikaku, Tokyo, 1986, pp. 393 ff.
Cf. Joseph L. Hoffmann, “Justice Dando and the “Conservative” Argument for Abolition”,
in Indiana Law Journal, 1996, vol. 72, no. 1, p. 21, referring to Dandō as being “truly aleader of the post-war generation of Japanese legal scholars and jurists”.
Dandō stressed the ‘educational’ function of the Tokyo Trial proceedings in this regard,even in his last years. See Shigemitsu Dandō and Ken Itō, Hankotsu no kotsu [The Essenceof the Spirit of Defiance], Asahi Shimbun Shuppan, Tokyo, 2007.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshipscholar to publish an in-depth analysis of the legal issues raised by the
Tokyo Trial.28
He held that the notion of crimes against peace as well as crimes
against humanity could be regarded as rooting in general principles of international law, which themselves could be perceived as a manifestationof natural law. As the international community did not have a central legislative body (unlike within States), Dandō pointed out the general international understanding that principles of justice and the humanitarian ideal were the common heritage of the civilized world. In his view, suchprinciples constituted the fundamental, universally accepted norms of international law. The codification of these norms starting in the nineteenth
century was an expression of the universal acceptance of these norms.29
Such manifest natural law – even if, like the categories of crimes against
peace and crimes against humanity, not codified prior to the Second
World War – was thus applicable as “positive law in the process of making”.30
Sure enough, these categories of crime were susceptible to doubts inlight of the principle of legality,31 namely the prohibition of retroactive
application of law. However, in Dandō’s view, the strict application of thisprinciple in international law in the same traditional understanding as indomestic criminal law, even if seemingly desirable in principle, was not
feasible considering the present (transitional) state in the development ofinternational law.32 Central to his argument was the assumption that boththe principle relating to the prohibition of ex-post facto law and the bodyof international law as such (particularly the law pertaining to war crimes)
shared the same philosophical foundation: they were both aimed at restricting the unjust exercise of State power while respecting individual
liberty.33 Hence, it would contradict the purpose of the principle of legali-

28

29
30
31
32
33

Shigemitsu Dandō, “Sensō hanzai no rironteki kaibō” [A Dogmatic Analysis of War
Crimes], first published in Chōryū, 1946, vol. 1, no. 7; reprinted in idem, Keihō no kindaiteki tenkai [The Modern Development of Criminal Law], Kōbundō, Tokyo, 1948,
amended and extended 1952 (cited here), pp. 153 ff.
Ibid., pp. 169 ff.
Ibid., p. 172 (author’s translation, same for below unless otherwise stated).
Ibid., p. 166.
Ibid., pp. 166-68, 171, 173.
Ibid., p. 167.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryty if it would be interpreted and used to protect those who abused such
power:In the sphere of international law, in particular the law concerning war crimes, this law by itself is construed in order torestrict the unjust exercise of State power; in its relationshipvis-à-vis the State power, one might even argue that this law
is based on the same theoretical grounds as the principle oflegality in domestic law.34

Therefore, in light of the ultimate purpose of establishing and fostering world peace, some modifications of the principle of legality werenecessary in order to enable the judicial recognition of individual criminal
responsibility under international law:
To simply apply sanctions against a State as such which has
initiated an illegal war would only have a very limited effect.
It is absolutely imperative to also punish those individuals
who were the driving force behind the initiation of the war.35

Dandō eventually – as the first and only legal scholar in Japan (surprisingly, up to the present day) – established three purposes of punishment specific to international criminal law:
1. a general deterrent effect of preventing future wars of aggression;
2. a special deterrent (and retributive) effect vis-à-vis the individual
perpetrator (whose apprehension prevents him or her from initiating
another war and thus secures society); and3. the ultimate purpose of realizing justice, thereby shaping the public
conscience of the international community (and strengthening faith
in the international rule of law) and thus indirectly contributing toworld peace.36
Accordingly, Dandō attributed a crucial role to the Tokyo Trial on
the way to constructing an international criminal justice system thatwould contribute to deterring future acts of aggression and maintaining
peace.

34
35
36

Ibid.
Ibid., pp. 173-74.
Ibid., pp. 174-75.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarship14.3.1.2. Seiichiro Ono
With regard to the notion of crimes applied in Tokyo and the principle oflegality, Dandō’s views were also echoed by his academic mentor, the distinguished criminal law scholar Seiichiro Ono (1891–1986).37 He was oneof the leading classic and objectivist criminal law scholars38 whose theories were also inspired by Buddhism.39 The objectivist theory of crimes
was based on the doctrine of the constitutive elements of crime (or thedescription of criminal offences: the Tatbestand) and on the principle oflegality.40
As to the doctrine of elements of crime, Ono distinguished between
cultural and purely legal norms, both of which contributed to the development of criminal offences. He concluded that all criminal offences were
to be construed as cultural phenomena.41 The concept of ‘culture’, however, remained vague and left substantial leeway for interpretation.42 In relation to Japan, Ono initially considered ‘culture’ as rooting in a specificallyJapanese understanding of Buddhism. As of 1940, Ono’s concept of genuine Japanese culture became the gateway for his ultra-nationalist theory ofa “supreme Japanese legal spirit” that, according to him, was to be disseminated. 43 Thus, he provided a doctrinal justification for Japan’s war
policy.44
In view of his ultra-nationalist wartime publications, he was purged
from his chair of criminal law at the (then still Imperial) University of To37

38
39

40
41

42
43

44

On the life and work of Ono, see Osten, 2003, pp. 131 ff., see above note 2; Osten[Osuten], 2005, pp. 89-90, 92-94, see above note 2; Minoru Honda, “Über den rechtsphilosophischen Universalismus in der japanischen Strafrechtsgeschichte – eine kritische
Betrachtung über den Strafrechtsgedanken Seiichiro Onos in der Zweiten Weltkriegszeit”,
in Ritsumeikan Law Review, 2014, no. 31, pp. 1 ff.
Honda, 2014, pp. 1, 5, see above note 37.
Cf. also Keiichi Yamanaka, Geschichte und Gegenwart der japanischen Strafrechtswissenschaft, Walter De Gruyter, Berlin, 2012, p. 12.
Cf. Honda, 2014, p. 5, see above note 37.
Cf. also ibid., pp. 1, 5, who argues that Ono considered the idealistic category of ‘culture’
to be a standard against which to measure actual criminal policy and jurisprudence.
Cf. ibid., p. 6.
In his main work of that time, presuming that war was (in some respect) a clash of cultures,
Ono considers it Japan’s task to establish a new, eastern global legal order based on the tradition of Japanese law: Seiichiro Ono, Nihon hōri no jikakuteki tenkai [The Independent Development of Japanese Legal Thinking], Yūhikaku, Tokyo, 1942, pp. 10, 11.
See Osten, 2003, p. 133, see above note 2.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

kyo in 1946. He became an attorney and later resumed teaching at a small
private university. He also temporarily acted as an assistant defence counsel at the Tokyo Trial.45 In this context, he published a short study on thecrimes defined by the IMTFE Charter.46
The study was confined to an introduction to the distinct characteristics of the crimes as stipulated in the Charter and a comparison of said
crimes with conventional offence categories in domestic criminal law.
Even though Ono did not engage in a specific discussion of Japanese war
crimes and their legal interpretation in the IMTFE, he thoroughly examined some legal issues raised by the verdict of the preceding Nuremberg
Trial.
As regards the principle of legality, Ono pointed out that it was afundamental principle of justice, but not the only principle of justice and,by far, not an absolute principle.47 Particularly, he noted the vagueness inthe definition of constitutive elements of “crimes against peace”. Ono attributed this vagueness to the fact that international law in this area wasstill “in the making” and the Nuremberg Trial was its first application.48
He also held that the legal grounds for individual criminal liability ofleaders of an aggressive State under international law could be comparedto the (generally accepted) legal concept of making representatives of juridical persons criminally responsible for certain offences committed by
the legal entity as such:
War is generally conceived as an act conducted by States; itis, however, obvious that such a war is planned, prepared, initiated and carried out by individuals, and it is not theoretically impossible to attribute criminal responsibility to suchacts of individuals. This resembles the concept of criminal
responsibility of individuals for certain actions of a juridical
person.49

45
46

47

48
49

For the defendant Takazumi Oka.
Seiichiro Ono, “Sensō hanzai no kōseiyōken – Kyokutō Kokusai Gunji Saiban no hōgakuteki kansatsu” [The Constitutive Elements of War Crimes – A Jurisprudential Contemplation of the International Military Tribunal for the Far East], in Hōritsu Shinpō, 1946, no.
731, pp. 38 ff.
Seiichiro Ono, “Nyurunberugu-hanketsu no hōritsu kenkai” [The Legal Conclusions of the
Nuremberg Judgment], in Hōritsu Shinpō, 1946, no. 734, p. 37.
Ibid., p. 39.
Ibid., p. 40.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarship

Moreover, with regard to the defence of acting upon superior orders,Ono generally agreed with the test indicated by the IMT, namely whether
moral alternative conduct was indeed possible.50 Remarkably, Ono did notrender such opinion in reference to the IMTFE. His reluctance in this regard could possibly be attributed to his writings and his role during thewar.51 After Japan regained its independence, Ono was quickly rehabilitated. In fact, he was appointed chairman of the Criminal Law Reform
Commission by the Ministry of Justice.52 As a result, the Japanese criminal law reform after the Second World War was partly influenced by
Ono.5314.3.1.3. Chihiro Saeki
While Dandō and Ono – the latter in reference to the IMT – analysed thenotion of crimes against peace and other crimes stipulated in the Tokyo
Charter mainly from the angle of the principle of legality, the renowned
criminal law scholar Chihiro Saeki (1907–2006) chiefly addressed theissue of acting upon superior orders as a criminal defence.54 Indeed, he
was the only criminal law scholar of his time who extensively discussed
this doctrinal issue specifically in the context of war crimes.
Initially, Saeki was a criminal law professor at Kyoto (Imperial)
University. Before the war, as of 1930, he had been devoted to developinga normative theory of penal guilt. At its core was the doctrine of reasonableness of norm-conforming (standard-compliant) conduct as a requirement for guilt in criminal law. Saeki considered the exceptional unreasonableness of norm-conforming conduct a supra-legal excusatory defence.
According to Saeki, the basis for assessing the unreasonableness is theperspective of the ruling State, which was the supreme authority defining
the values of the social order that criminal law aimed at protecting.55 In
his main work before the end of the war, “Criminal Law, General Part”,56
he argued that in Japan, not only penal guilt, but also moral and religious
50
51
52
53
54
55

56

Ibid., p. 40.
Cf. Osten, 2003, p. 138, see above note 2.
Ibid.; Honda, 2014, p. 2, see above note 37.
Cf. Yamanaka, 2012, p. 41, note 16, see above note 39.
On the life and work of Saeki, see Osten, 2003, pp. 133, 138, see above note 2.
Chihiro Saeki, “Kitaikanōsei no hyōjun” [The Standard for Reasonableness], in Hōgaku
Ronsō (Kyoto Law Review), 1941, vol. 45, no. 2, pp. 3 ff.
Chihiro Saeki, Keihō sōron [Criminal Law, General Part], Kōbundō, Tokyo, 1944.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

guilt could be traced back to the State embodied by the Emperor – theTennō.57 With regards to the reasonableness of norm-compliant conduct,
Saeki concluded that the law should be construed in order to meet the
Tennō’s expectations towards his subjects.58 Unsurprisingly, this line ofargument invited arbitrary exercise of State power in the field of criminal
justice. In a way, Saeki’s reasoning can be regarded as constituting a Japanese version of the notion of ‘gesundes Volksempfinden’ (sound popular
conscience) in Nazi Germany.59 In the last years of the war, Saeki considered it the function of legal scholarship to establish a genuinely Japanesejurisprudence supporting Japan’s combat mission.60
Due to these views expressed during the Second World War, Saeki –like Ono – was removed from his chair of criminal law in 1946. His biography displays further similarities with that of Ono insofar as he became
an attorney, acted as an assistant defence counsel at the Tokyo Trial,61 andlater resumed teaching at a private university (Ritsumeikan University).
As opposed to his wartime views, in the post-war period, Saeki sympathized with the Japanese Communist Party and socialist parties. Furthermore, he now pursued the doctrine that criminal law primarily served as ameans to protect human rights.62 Saeki’s publications concerning the theory of guilt continued to influence the scholarly debate. While he kept focusing on the State as a fundamental cornerstone of his line of reasoning,
the State was now, in his view, to be understood as part of the democraticinternational community.
Perhaps due to this change of heart, Saeki also dealt with the Tokyo
Trial, albeit marginally. Upon the proclamation of the IMTFE Charter,

57
58
59
60

61
62

Ibid., p. 201.
Ibid., pp. 269, 273.
Cf. Osten, 2003, p. 134, see above note 2.
Chihiro Saeki, “Keihō ni okeru nihonteki-naru-mono no jikaku I” [The Discovery of theJapanese Element in Criminal Law, Part I], in Hōgaku Ronsō (Kyoto Law Review), 1943,
vol. 49, no. 1, pp. 1 ff.
For the defendant Akira Mutō.
Compare Chihiro Saeki, Keiji-saiban to jinken [Criminal Justice and Human Rights],
Hōritsu Bunka Sha, Tokyo, 1957. This work from the post-war period is representative of
Saeki’s new human rights-based style of argumentation. Saeki attributes his change ofheart to his new experiences as an attorney, “a lawyer in opposition” (zaiya hōsō) which
supposedly increased his awareness of the vital role of human rights in criminal justice,ibid., p. 2 (preface).

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarship

Saeki explored the superior orders defence stipulated therein.63 He analysed the differing legal assessments of executing an unlawful order of amilitary commander in Anglo-American and Japanese laws. In doing so,
he identified three distinct approaches:
1. The theory of the absolute duty to comply with an order – which
was, according to Saeki, prevailing in Germany and Japan – did notprovide for the right of the subordinate to verify the legality of theorder. As a consequence, there was no room for deviant conduct of
the subordinate. Therefore, following this approach, the soldiercomplying with the illegal order could not be held criminally liable
for the injustices committed by him; he was deemed to act without
penal guilt.64
2. The theory of the “intelligent soldier” (Interi-hei-setsu),65 supposedly predominating in Anglo-American legal thinking, on the other
hand, included the right of the subordinate to review the order. In
case of the order being illegal, there was no duty to comply. Hence,the soldier complying with the illegal order could be held criminallyliable and could not rely on an excusatory defence.
3. The mediating theory, which Saeki considered to be prevailing inFrance, held that the sentence for the subordinate might be mitigated or waived if he complied with a formally legal but materially illegal order. An obligation to refuse to obey existed only if the material illegality of the order was manifest.66
Saeki utilized these theories as a starting point for a comparison between Anglo-American and Japanese legal thinking. While the liberaldemocratic Anglo-American thinking supported the idea of freedom of
choice of the soldier, the traditionally hierarchical structure of the Japanese society and the corresponding legal opinion called for unconditional
obedience in the army.67 Ultimately, Saeki applied his doctrine of unrea63

64
65
66
67

Chihiro Saeki, “Sensō hanzainin saibanrei to jōkan no ihōmeirei – Eibei keihō shisō towaga keihōgaku to no hitotsu no taihi” [The Statute of the War Crimes Tribunal and theUnlawful Order of the Superior – A Comparison of Anglo-American Legal Thinking in
Criminal Law and Japanese Criminal Law Doctrine], in Hōritsu Bunka, 1946, vol. 1, nos.
5/6, pp. 10 ff.
Ibid., p. 11.
Ibid.
Ibid.
Ibid.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

sonableness of norm-compliant conduct to the superior orders defence. He
argued that obeying unlawful orders could constitute – depending on thesocio-cultural background of the subordinate – a supra-legal excusatory
defence due to exceptional unreasonableness of standard-compliant conduct.68 Beyond this assessment, however, Saeki did not follow up with acomprehensive analysis of this legal concept with regard to its actual application and interpretation in the Tokyo Trial and judgment.
14.3.2. Public International Law Scholars
14.3.2.1. Kenzō Takayanagi
One of the most famous critics of the Tokyo Trial is the international lawyer Kenzō Takayanagi (1887–1967), Japan’s leading scholar of AngloAmerican law at the time. He studied law at Harvard as well as in Chicago and London. Since 1921, he had held a chair for both Public International Law and Constitutional Law at the (then Imperial) Tokyo University. At the IMTFE, he had been appointed defence counsel for the defendant Mamoru Shigemitsu. During the pleadings before the Tribunal, however, he took the floor for all defence lawyers and was considered “theirleading intellectual light”.69 In November 1948, he published his pleadings in reply to the prosecution’s arguments in a two-part book with boththe original English pleadings and Takayanagi’s own Japanese translation,
which saw a number of additions and revisions.70 The book was publishedat the time of the delivery of the judgment, which Takayanagi could not
address therein.
In his final address to the Tribunal, summing up the defence on
points of law, he argued:
Law is a common consciousness of obligation. Criminal Law
is a common consciousness of obligation coupled with an
obligation to suffer penalties if it is disregarded. Statesmen
perform their transcendently important functions under acommon consciousness of obligation under International
Law. But statesmen have not hitherto performed their functions under any common consciousness of obligation to suf68
69
70

Ibid., pp. 12, 13.
Boister and Cryer, 2008, p. 275, see above note 12.
Kenzō Takayanagi, The Tokio Trials and International Law; Answer to the Prosecution’s
Arguments on International Law Delivered at the International Military Tribunal for the
Far East on 3 & 4 March 1948, Yūhikaku, Tokyo, 1948.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshipfer the arbitrary penalties of military law in case the obligations of International Law are broken. The absence, as a patent fact, of any such common penal consciousness, prevents
the existence of such a penal law. […] In the absence of sucha Law, the imposition of such penalties would be nothing but
lawless violence.71

Thus, from the very start, Takayanagi made clear that there existed
no legal basis for the crimes charged at Tokyo in international law; imposing criminal sanctions in such proceedings was nothing but victor’s justice.
From his fundamentally positivist point of view, the only legal basis for
the Tribunal was, in essence, the provision of the Potsdam Declaration,that “stern justice shall be meted out to all war criminals, including those
who have visited cruelties upon our prisoners of war”.72 Having narrowed
down the legal foundation of the proceedings, Takayanagi proceeded withan interpretation of the terms “war crimes” and “war criminals”. He
strived to show that their established meaning under international law as
well as in the Potsdam Declaration comprised only acts committed in thecourse of a war and the perpetrators of such acts – that is, conventional
war crimes –, whereas acts committed prior to the outbreak of a war werea priori ruled out.73
For Takayanagi, of all crimes mentioned in the Charter, only war
crimes in this narrow sense met the requirements of the nulla poena principle, whereas the others had to be regarded as ex-post facto law, rendering a punishment by them “sheer lynch law in the guise of justice”.74 In afamous statement, Takayanagi compared the prosecution’s view that punishment of aggressive war “follows the needs of civilization and is a clear
expression of the public conscience”75 with the abolishment of the principle of legality in Nazi Germany (through the notion of ‘gesundes Volksempfinden’):As a matter of fact, such a vague principle when it actuallyoperates in the administration of criminal justice is just as
71
72
73
74
75

Ibid., p. 1 (original emphasis).
Ibid., pp. 2-3.
Cf. ibid., pp. 4-9.
Ibid., p. 12.
The Proceedings of the Tribunal in Open Session, in Pritchard and Zaide (eds.), 1981, vol.
2 (The Case for the Prosecution), p. 435, see above note 10 (also available in the ICC Legal Tools Database).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

cruel and as oppressive as the penal doctrine which characterized the Third Reich.76

Having denounced the Tribunal as a whole, Takayanagi again
turned to the crimes as provided in the Charter, focusing on crimes against
peace. He undertook a comprehensive analysis of the applicable treaties,
to demonstrate that there was, in fact, no sound differentiation between a
war of aggression and a war of self-defence.77 He argued that the term
“aggression” was too vague and ill-defined to derive any legal consequences from it.78 In sum, Takayanagi concentrated on pointing out thelegal weaknesses of the proceedings; he was highly critical of the conceptof crimes applied in Tokyo, which in his view could not have a precedential impact on the further development of international law.
14.3.2.2. Kisaburō Yokota
In stark contrast to Takayanagi’s position, the leading authority on international law in Japan at that time, Kisaburō Yokota (1896–1993), was favourably disposed towards the Tokyo Trial. Yokota held a chair in public
international law at the (then Imperial) Tokyo University, became the firstJapanese member of the International Law Commission (in 1956) andserved as president of the Supreme Court of Japan (1960–1966). He wasalso entrusted with the co-ordination and supervision of the translation of
the majority judgment of the Tokyo Trial from English to Japanese.
As early as 1933, Yokota had denounced any war as both a violation of international law and even an international crime, unless it was acase of either self-defence or sanctions in accordance with the League of
Nation’s covenants on the outlawing of war.79 While the Tokyo Trial was
still pending, he published the comprehensive treatise Sensō hanzai-ron(A Treatise of War Crimes),80 which can, even now, be considered as abenchmark in Japanese international criminal law scholarship. It was written under the assumption that there was a “major re-conceptualization”
taking place in international law with war itself now being in the focus ofinternational law.81 In his assessment of the trial, Yokota, in essence, em76
77
78
79
80
81

Takayanagi, 1948, pp. 11-12, see above note 70.
Ibid., pp. 21-37.
Ibid., pp. 43-48.
Kisaburō Yokota, Kokusaihō [International Law], vol. I, Yūhikaku, Tokyo, 1933, pp. 61.
Kisaburō Yokota, Sensō hanzai-ron [A Treatise of War Crimes], Yūhikaku, Tokyo, 1947.
On Yokota, see also Totani, 2008, p. 196, see above note 2.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshipphasized the “revolutionary” significance of the trial for the future development of international law in what he regarded as a transitional period inwhich the traditional notion of ‘war crimes’ (that is, violations of ius in
bello) had to be re-adjusted to incorporate the planning and execution of awar of aggression (that is, ius contra bellum) to the criminality of waging
an aggressive war, he rejected the criticism concerning ex-post facto law
and argued as follows:
The question is whether the act under consideration possesses a substantial criminal character, and whether there are any
legitimate reasons for the act to be punished.83

If there are sufficient substantial reasons, such substance should not
be ignored on grounds of legal technicalities such as a purely formalistic
understanding of the principle of legality (which does not necessarily havethe same scope of applicability in international law). Thus, as long as thecrime itself is manifested sufficiently (that is, in international treaties renouncing war, in particular the Kellogg-Briand Pact of 1928), the punishment in its character as a concrete sanction for a specific illegal act does
not necessarily have to be stipulated a priori.84
Altogether, Yokota admitted that the Tribunal had certain shortcomings from a formal and strictly legalistic point of view. However, with afocus rather on substantive questions of justice and recent tendencies ininternational law reflecting such notions, there were overriding reasons topunish the accused for carrying out a war of aggression.85 Yokota also endorsed the complete adherence of the majority judgment of the Tokyo Trial to the legal reasoning of the Nuremberg judgment, as this consistency
supposedly reinforces the precedential value of both trials for the development of international law.86 Several years after the Tribunal, he again
held that “the character of aggressive war as an international crime has
been established beyond doubt”.87

82
83
84
85
86

87

Yokota, 1947, pp. 3, 130, see above note 80.
Ibid., p. 5 (preface).
Ibid., pp. 131, 136.
Ibid., pp. 5 ff., 125-26.
Kisaburō Yokota, Sensō hanzai-ron [A Treatise of War Crimes], second edition, Yūhikaku,
Tokyo, 1949, pp. 305-06.
Kisaburō Yokota, “War as an International Crime”, in Grundprobleme des Internationalen
Rechts. Festschrift für Jean Spiropoulos, Schimmelbusch, Bonn, 1957, p. 460.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

14.4. Outlook: Further Developments in the Japanese Scholarly
DebateOverall, the views and arguments put forward by contemporary Japanesescholars of the Tokyo Trial, in the academic fields of both criminal law
and public international law, can be summed up as follows. The generalview of the trial was surprisingly positive and optimistic – notwithstanding a clearly perceptible bassline of criticism. The Tribunal was mostly
regarded as an important or even necessary step forward in international
criminal law. As to the specific crimes stipulated in the Tokyo Charter,
unsurprisingly, the novel notion of crimes against peace constituted thecentre-piece of the scholarly debate, whereas conventional war crimes, assuch, did not give rise to much controversy, and crimes against humanity
were, for the most part, not examined in detail (or disregarded, as in thetrial itself). In particular, the legal concept of crimes against peace wasdeemed as justified and also legitimate on legal grounds; the principle oflegality was re-conceptualized to advance the higher cause of international justice.
However, this debate took place in the wake of the trial within a rather limited circle of legal scholars; given the manifold legal shortcomingsof the trial, a certain general reluctance to deal with the trial in depth (or atall) among many legal academics was also apparent.88 For decades to follow, the trial did not receive much attention as a subject of legal researchamong law scholars in Japan. The trial and the three categories of crime
which were applied in Tokyo completely disappeared from the focus ofresearch of Japanese criminal law scholars (even those who had initiallyconveyed positive assessments of the trial, such as Dandō), whereas international law scholars became reluctant to conduct research on such a politically mined field of law.
After decades of scholarly neglect, a revival of interest towards theTokyo Trial has gradually developed among Japanese academics since the1980s. In this renaissance of studies on the trial, it was, however, historians (but not legal scholars) who played the central part, drawing on newly88

On this, see Kōichi Miyazawa, “Rechtsprobleme der Kriegsverbrecherprozesse”, in Bernhard Diestelkamp, Zentarō Kitagawa, Josef Kreiner, Junichi Murakami, Knut Wolfgang
Nörr, and Nobuyoshi Toshitani (eds.), Zwischen Kontinuität und Fremdbestimmung – zum
Einfluß der Besatzungsmächte auf die deutsche und japanische Rechtsordnung 1945–1950,
Mohr Siebeck, Tübingen, 1996, pp. 73 ff.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshipavailable trial-related records.89 The most recent generation of Japanesescholars attempts to reassess the legal significance of the Tokyo Trial.
This reassessment takes place in light of the rapid progress in the field ofinternational criminal justice that has occurred in the years following theend of the Cold War, leading up to the establishment of the two ad hoc
Tribunals of the United Nations and ultimately to the ICC. These researchers (again, mostly historians, not legal scholars) attempt a reappraisal of some legal findings of the Tokyo Tribunal (such as that of superior responsibility) and point out to the long-term legal significance of thetrial on the way to furthering the international rule of law.90
Such kind of reappraisal is correct in its assessment that today’s order of international criminal law resembles to some extent the initial aims
and ambitions of the Tokyo Trial at its outset, and confirms some legalfindings of the judgment. However, such an assessment partly reveals thetendency of resorting to a largely result-oriented method of argumentation,
as it is not always able to provide sufficient proof of a causal impact of
the Tokyo judgment on the establishment and further development of specific legal concepts of modern international criminal law.
Outside of Japan, after having been overlooked or marginalized in
the international debate for decades, the Tokyo Trial has become the subject of increasing attention even for legal scholars.91 Moreover, recently,
regarding some substantive law issues, even a tendency to the opposite
extreme, that is, the attempt to aggrandize the precedential value of thetrial and its findings excessively, can sometimes be encountered.92 To this
89

90

91
92

See, for instance, Kentarō Awaya (with NHK reporters), Tōkyō saiban e no michi [ThePath to the Tokyo Trial] (publication accompanying an NHK documentary series under thesame title), Kōdansha, Tokyo, 1994, p. 212; Kentarō Awaya, “The Tokyo Trials and the
BC Class Trials”, in Klaus Marxen, Kōichi Miyazawa, and Gerhard Werle (eds.), Der
Umgang mit Kriegs- und Besatzungsunrecht in Japan und Deutschland, Berliner Wissenschafts-Verlag, Berlin, 2001, pp. 39 ff. For an influential monograph in the area of politicalsciences, see Yoshinobu Higurashi, Tōkyō saiban no kokusai-kankei: Kokusai seiji ni okeru kenryoku to kihan [The International Relations Surrounding the Tokyo Trial: Powerand Norms in International Politics], Bokutaku-sha, Tokyo, 2002.
See Totani, 2008, pp. 4, 259, see above note 2. See also – for a slightly less affirmative
view – Futamura, 2008, pp. 13, 147, see above note 11.
See, for instance, the monumental work of Boister and Cryer, 2008, see above note 12.
As a recent example, see GAO Xiudong, “The Tokyo Trial and Its Influence on Contemporary International Criminal Justice”, in LIU Daqun and ZHANG Binxin (eds.), Historical War Crimes Trials in Asia, Torkel Opsahl Academic EPublisher, 2016, pp. 93 ff.
(http://www.toaep.org/ps-pdf/27-liu-zhang): “[…] its [the trial’s] importance in the pro-

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end, one should perhaps be careful not to overestimate the precedential
impact of all aspects of the Tokyo judgment. In any case, interestingly,
although outside of Japan, the legal contribution of the Tokyo Trial is receiving increasing reappraisal, within Japan, only a very reluctant legal
reassessment of the trial, if any, can be detected.93
Looking back upon the Japanese scholarly debate, the most surprising finding is that some of the most subtle and visionary assessments were
publicized by legal scholars during or shortly after the trial. The legal reasoning and perspectives adopted by these contemporary scholars anticipated, to some extent, legal concepts which are now generally recognized
in international criminal law (such as specific purposes of punishment underlying this field of law). It should, however, not be overlooked thatthese affirmative assessments are almost forgotten in Japan today, evenamong Japanese legal academics; they did not shape the Japanese perception of the trial. Unlike historians, Japan’s present-day legal scholars display a certain reluctance to conduct research on the Tokyo Trial; theyseemingly prefer sticking to the current flow of international criminal law
and for the most part, only take up legal issues related to the ICC or the ad
hoc Tribunals. In this regard, perhaps an overly one-sided focus of the
post-war debate on the most problematic of the three crimes adjudicatedat the Tokyo Trial, crimes against peace, may have blurred the view onother legal findings of the judgment, in particular regarding conventional
war crimes and modes of individual imputation, which deserve closer
scholarly attention.94 The scholarly debate in the aftermath of the trial def-

93

94

gress of international criminal justice cannot be denied and its great achievements are beyond doubt […]. By its nature it was a trial of evil fascist forces by international justice” (p.
95); “No matter how we examine it, the Tokyo Trial established a significant legal precedent, providing important guidance to all subsequent international trials” (p. 97).
In this context, it also seems noteworthy that the recent reappraisal of the trial, although
primarily triggered by a young generation of Japanese researchers (such as the historianYuma Totani and the political scientist Madoka Futamura), was – due to their affiliation
with American and British universities – initially publicized in English (Totani published aJapanese translation of her book shortly after) and thus, took place outside of Japan at first.
In a strict sense, it may even be inappropriate to describe this debate as a ‘Japanese’ debate.
Compare Osten, 2003, pp. 82-83, see above note 2; Philipp Osten [Firippu Osuten],“Tōkyō saiban ni okeru hanzai-kōsei-yōken no saihō – Shoki-kokusai-keihō-shi no ichidanmen no sobyō” [Elements of Crime at the Tokyo Trial: A Study in the Early History ofInternational Criminal Law], in Hōgaku Kenkyū (Keio University Law Review), 2009, vol.
82, no. 1, pp. 315-38.

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14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of
the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarshipinitely did not give rise to the emergence of an elaborate international
criminal law scholarship in Japan.

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15______
Remembering the Tokyo Trial, Then and Now:
The Japanese Domestic Context of theInternational Military Tribunal for the Far East
Beatrice Trefalt*
15.1. Introduction
The recent historical drama Tōkyō saiban (Tokyo Trial, directed by a
Dutch team for Japan’s national broadcaster, NHK, in 2016) highlighted
for Japanese and international audiences the politicized nature of the Tribunal, the personality clashes amongst justices, and the lead-up to the
judgment and its famously dissenting opinions. In this courtroom drama,
the depiction of the noble – and tortured – dissenting justices, particularly
the central hero, the Dutch justice Röling, and the less central, but nevertheless powerfully present Indian justice Pal, might have reinforced forJapanese audiences a cynical view of the trial as an exercise in blatant
politics, with a good dose of revenge and racism thrown in. However, fora drama about the prosecution of Japanese war crimes, Japanese characters are largely absent from the story. The show focuses on the debates
within the courtroom: apart from the portrayal of Röling’s friendship withliterary critic and author Michio Takeyama, Japanese participants appear
either in bit parts as unimportant service personnel, or in interweaved
original documentary footage as defendants, lawyers and otherwise as diminutive figures in the landscape of burnt-out Tokyo. The same can besaid about much of the existing research on the Tokyo Trial: the focus oninternational judges and their arguments has largely left untouched thequestions of whether and how Japanese audiences engaged with the trial,*

Beatrice Trefalt is Associate Professor of Japanese Studies in the School of Languages,
Cultures, Literatures and Linguistics at Monash University, Australia. She is co-author,
with Sandra Wilson, Robert Cribb and Dean Aszkielowicz, of Japanese War Criminals:
The Politics of Justice After the Second World War (Columbia University Press, 2017).
She has published articles and chapters on war crimes trials, as well as on broader war legacies in Japan and the region. Her latest publication is “The Battle of Saipan in Japanese
Civilian Memoirs: Non-combatants, Soldiers and the Complexities of Surrender”, in Journal of Pacific History, 2018, vol. 53, no. 3, pp. 252-67.

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and what other elements of the Japanese defeat might have impacted themeanings it came to acquire over the years that followed.
This chapter aims to bring into focus the Japanese audiences of thetrial and its aftermath. It first considers, in Section 15.2., how information
about the trials became available to Japanese readers (and radio listeners)
as part of the broader context of the occupation. Second, in Section 15.3.,
it highlights the importance of other war crimes trials, in adding a classdimension to the interpretation of the Tokyo Trial and the accused, particularly in the post-Occupation period. Third, in Section 15.4., it reflects on
the broader context of war commemoration in commenting on the depiction of those convicted at the Tokyo Trial in the late 1960s and beyond.
Such a contextual approach brings additional insights into the symbolicrole of the Tokyo Trial in Japan itself, and its place in the development ofbroader attitudes towards the war and its aftermath. Philipp Osten, Yuma
Totani, and Urs Matthias Zachmann have already provided detailed analyses of the recollections and interpretations of Japanese lawyers and historians throughout the post-war period. My aim here is to provide additions
from the perspective of the daily press and magazines for general readership.1
15.2. The Tokyo Trial and the Allied Occupation of Japan
Japanese attitudes to the International Military Tribunal for the Far Eastand its processes must be considered within the broader context of Occupied Japan. There, unlike Germany, the Allied military occupation retained the existing Japanese government, except those indicted for war
crimes and those purged for their close association with the wartime government. The Occupation’s mission of demilitarization and democratization relied on two core ideas: first, that the blame for the war belonged to1

To date, the most comprehensive account of the Japanese scholarly debate on the Tokyo
Trial is Philipp Osten, Der Tokioter Kriegsverbrecherprozeß und die japanische
Rechtswissenschaft, Berliner Wissenschafts-Verlag, Berlin, 2003; Philipp Osten [Firippu
Osuten], “Tōkyō saiban to sengo Nihon keihō-gaku” [The Tokyo Trial and the Debate
among Criminal Law Scholars in Post-War Japan], in Yoshihisa Hagiwara (ed.), Posuto
wō shitizunshippu no kōsōryoku [Designing Post-War Citizenship], Keio Gijuku Daigaku
Shuppan Kai (Keio University Press), Tokyo, 2005, pp. 85-103; Yuma Totani, The Tokyo
War Crimes Trial: The Pursuit of Justice in the Wake of World War II, Harvard University
Press, 2008; and Urs Matthias Zachmann, “Losers’ Justice: The Tokyo Trial from the Perspective of the Japanese Defence Counsels and the Legal Community”, in Kerstin vonLingen (ed.), Transcultural Justice at the Tokyo Tribunal: The Allied Struggle for Justice,
Brill, Leiden, 2018, pp. 284-306.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far Easta minority of people who had misled the bulk of the population; and second, as a corollary, that one of the crucial roles of the Occupation forces
was the re-education of Japanese people.
This re-education aimed to bring the Japanese people at large to understand and condemn Japanese wartime leaders’ actions (and moral corruption) in bringing Japan into the war, and to become informed about thedespicable actions of Japanese troops in occupied territories and against
prisoners of war. Furthermore, as part of this re-education, Japanese people were to understand how a lack of civic participation in government
contributed to these outcomes, thus providing a pedagogical underpinningto all Occupation reforms aiming to democratize Japan. I am not suggesting here that the Tribunal was explicitly part of this re-education programme; nor am I arguing that it was fundamentally shaped by its imbrication into the Occupation’s wider programme of propaganda and censorship discrediting parts of Japan’s past, or sections of its leadership. The
point is, rather, that because of this context of occupation, the Tokyo Trial
was very much part of the daily life for the Japanese people. Information
about it was plentiful and public; its progression was the subject of near
daily reports in the newspapers; and its contents was laid out against numerous other reports and information about the war. Even the words ‘Akyū senpan’ (Class A war criminal) became widely used to refer to a despised and badly treated individual. In that sense, Neil Boister’s assessmentof the Tokyo Trial as having elements of a ‘show trial’ rings true.2 The
question was whether this show was convincing. Just as there were arange of attitudes towards the propaganda of the Occupation “selling democracy as though it were an advertising campaign for a new soap”,3 attitudes towards the trial were multi-layered, complex and fluid.
On 15 August 1945, Japanese people gathered around radios to listen to the Emperor announcing Japan’s surrender. On the same day, next
to the transcript of the Emperor’s speech, newspapers carried the full textof the Potsdam Declaration. Arguably, it was at this time that people in thestreets got the first inkling of the pursuit of Japanese war crimes through2

3

Neil Boister, “The Tokyo Military Tribunal: A Show Trial?”, in Morten Bergsmo,
CHEAH Wui Ling, and YI Ping (eds.), Historical Origins of International Criminal Law:
Volume 2, Torkel Opsahl Academic EPublisher, Brussels, 2014, pp. 3-29 (https://www.
legal-tools.org/doc/fa649c/).
William J. Coughlin, Conquered Press: The MacArthur Era in Japanese Journalism, Pacific Books, Palo Alto, 1952, p. 45.

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courts. How exactly these trials were to occur, and which government was
to run them, however, remained unclear even at the highest echelons of
the Japanese government for several weeks. 4 Nevertheless, it became
clear to the Japanese people, explicitly and implicitly, that trials would
take place, and that there would be punishment for those responsible forthe war and for the actions of the Japanese military overseas. News of thearrest of former Prime Minister Hideki Tōjō and of his attempted suicide
on 12 September 1945 signalled the preparations for the trial in Tokyo. On
16 September 1945, the General Headquarters of the Supreme Commander for the Allied Powers (commonly known as ‘GHQ’ and ‘SCAP’) instructed Japanese newspapers to publish reports on Japanese atrocities in
the Philippines. These had a great impact on the Japanese population, either fuelling existing discontent about the behaviour of demobilized
troops with evidence of brutal misdeeds overseas, or suggesting to cynicalreaders that the Occupation’s propaganda went as far as fabricating evidence in its efforts to discredit the Japanese armed forces.5
In the lead up to the trial, newspapers regularly carried news items
about the preparations by the prosecution team and the collection of evidence about wartime events: on 21 October 1945, the Asahi shinbun announced in a big headline that a historically unprecedented trial of some
4,000 people would open in Tokyo within two months, with a focus onpunishment for the mistreatment of prisoners of war, amongst othercrimes. 6 Information about the prosecution of war criminals in Manila,
Singapore, Borneo and other places was supplemented by lavishly pro4

5

6

See, for example, “Potsudamu sengen zenbun” [Full Text of the Potsdam Declaration],
Asahi shinbun, 15 August 1945, p. 1; and Hitoshi Nagai, “Sensōhanzainin ni kansuru seifu
seimei an: Higashikuni naikaku ni yoru kakugi kettei no myakuraku” [The Government’s
Plans Regarding War Criminals: The Chain of Reasoning in the Decision of The Higashikuni Cabinet], Nenpō: Nihongendaishi [Modern Japanese History Yearbook], December
2005, vol. 10, pp. 277-321.
“Hitō Nihonhei no bōjō” [Violent Actions of Japanese Troops in the Philippines], Asahi
shinbun, 16 September 1945, p. 2. For attitudes to the reports, see Tottori-ken Keisatsu
Buchō, “Hitō ni okeru Nihonhei no bōkō jōdō ni taisuru bumin no hankyō ni kansuru ken”
[Report on the Reactions of a Section of the Population about the Information Regarding
Violent Actions of Japanese Troops in the Philippines], in Kentarō Awaya (ed.), Shiryō
Nihon gendaishi 2: Haisen chokugo no seiji to shakai [Modern Japanese History inSources vol. 2: Politics and Society after the Defeat], Ōtsuki Shoten, Tokyo, 1981, p. 207.
“Shijō keu no daisaiban: Sensōhanzainin yonsen mei ni tassen – Nikagetsu inai ni Tōkyō
de hiraku” [An Unprecedented Huge Trial: Expected to Reach 4,000 War Criminals – To
Open in Tokyo in the Next Two Months], Asahi shinbun, 21 October 1945, p. 1.

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of the International Military Tribunal for the Far East

duced radio shows that retold for the listeners the truth about Japan’s history and the crimes of its former leaders.7 The editorial of the Asahi on 14
December 1945 explained to its readers that the trial of war criminals waspart and parcel of condemning war, working for a peaceful future andeventually re-joining the community of nations.8 In that sense, well before
it started, the Tokyo Trial was intricately connected with the Occupation’s
re-education programmes, in ways that were divorced from the Tribunal’s
own legal underpinnings and concerns.
Once the trial started, it gained an additional dimension as a place
where crucial information was uncovered about political and militaryconditions before and during the war. These conditions had been hiddenfrom the Japanese public at large through the wartime government’s own
censorship. But now, the trial provided new information about the war
from the ‘horse’s mouth’, as it were: whether or not those listening were
cynical about interpretations of the recent past in broader Occupation
propaganda, courtroom evidence revealed the thinking of Japan’s own
wartime leadership. When the layout of the courtroom was presented to
the readers of the Asahi, with detailed information on the seating arrangements for the accused, the prosecution, the justices and so on, theheadline highlighted that 200 seats in the public gallery had been allocated for a Japanese audience.9 The function of the trial as a source of information about recent history for the Japanese people, again, was not central
to the Tribunal in and of itself, but it certainly was one of its important
aspects for interested Japanese observers in the context of Occupied Japan.
In addition, the insight afforded by the trial into political decision-making
before and during the war was important in the development of criticalappraisals of wartime leadership. Historian Masao Maruyama made thepoint in the book Thought and Behaviour in Modern Japanese Politics,
published a decade afterwards in 1956, that the Tokyo Trial was a crucial
and unprecedented source of information for him and others about Japanese politics from the Manchurian incident onwards. Journalists, lawyers
and their aides carefully collected materials, including copies of documen789Mark Gayn, Japan Diary, Tuttle, Tokyo, 1981 (first published in 1948), pp. 6-7.
“Shasetsu: Sensō hihan no riron” [Editorial: Theoretical Basis for a Critique of the War],Asahi shinbun, 14 December 1945, p. 1.
“Nihonjin bōchō nihyakumei – A kyū senpan hōtei junbi totonou” [200 Seats for JapaneseAudience: Preparations for Class A War Crimes Court], Asahi shinbun, 23 March 1946, p.
2.

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tary evidence, and smuggled them out of the courtroom, not only to critique the process of the trial (surely an important element), but also tobuild up an understanding of what had led to Japan’s defeat.10 Asahi journalist Yoshimi Mori, who started collecting trial-related materials from1947 onwards, wrote in the foreword of the resulting 1953 publicationthat the trial and the documentation it created was crucial in providing for
future Japanese readers explanations of “what led our country to start thatwar, and then bring it to destruction”.11
In some quarters of the Japanese population, the idea that the surrender had been a sort of cease-fire, rather than an unconditional surrender,
persisted for at least three months into the Occupation. 12 However, theTokyo Trial was part of a set of events, including loudly trumpeted political reforms, that put paid to such misunderstandings. Furthermore, thewealth that was displayed in the preparation of the courtroom also no
doubt provided a lesson about defeat for the population of Japan. By thetime the Trial was underway, with its bright lights, cameras and airconditioning, the contrast must have been striking between the economic
and technological power displayed within the walls of the courtroom, andthe poverty of the city around it, where the population remained on thebrink of starvation for several months after the defeat.
This contrast is highlighted in a set of dramatic sequences in themini-series Tōkyō saiban: the show begins with the arrival of the British
justice Lord Patrick and focuses on the slow progress of his expensive car
through a devastated city. The sharp disparity in the wealth of the Allies
and the poverty of Japan is also a leitmotiv of later depictions of the trial.13 The inequality in technological capital impacted on the ability of Jap10

11

12
13

Masao Maruyama, Thought and Behaviour in Modern Japanese Politics [Gendai seiji noshisō to kōdō], Miraisha, 1956 (translated to English and published by Oxford University
Press, 1963), p. 199, quoted in Takeshi Sumitani, “Tōkyō saiban no kiroku/tosho ni tsuite
no oboegaki” [Memorandum on Records/Books on the Tokyo Trial], in Sankō shoshi
kenkyū, May 1973, no. 7, p. 1.
Yoshimi Mori, “Maegaki”, in Kyokutō Kokusai Gunji Saiban kiroku: Mokuroku oyobi
sakuin [Record of the International Military Tribunal for the Far East: Catalogue and Index], Asahi shinbun chōsa kenkyū shitsu, 1953, p. 3, quoted in Sumitani, 1973, p. 5, seeabove note 10.
Awaya (ed.), 1981, p. 123, see above note 5.
Saburō Shiroyama, War Criminal: The Life and Death of Hirota Kōki, John Bester (trans.),
Kodansha International, Tokyo, 1977 (first published as Rakujitsu moyu, Shinchosha, Tokyo, 1974), p. 256.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far Eastanese lawyers to be as well prepared as their Allied counterparts, particularly the American ones: Yutaka Sugawara, the defence lawyer for General Sadao Araki, noted with envy the skills of the American court stenographer, who could immediately repeat what had been said by reference tothe tape if clarification was required, compared to the Japanese stenographer, who only had experience in the Japanese Diet and was at first unable to do so. More importantly, Sugawara remembered enviously, his
American counterparts could have whatever had been said in the morning
typed up during lunchtime, and ready for the afternoon session, whereas
the Japanese side could wait for up to a month for a typed record, so that
“we experienced an unconditional surrender in administrative terms aswell”.14
Many commentators have noted the extent to which the attitudes
towards the defendants, and the trial as a whole, changed over time. According to regional police collections on rumours and attitudes, in the firstfew months of the Occupation, people tended to be pragmatic about thearrest of wartime leaders: it was only to be expected that those who started the war should be tried.15 Attitudes towards the accused were also affected by the broader context of the defeat: there was widespread resentment of soldiers and the military for several months, created perhaps lessdirectly by Occupation propaganda than by hunger, cold and the sheer
exhaustion caused by the war.16 Resentment of wartime leaders led to little sympathy for the accused: according to rumours collected by the police
in 1945, it was a common complaint that the “people hadn’t wanted war”,
and that “they had been led into it by their leaders”.17 The idea that theseleaders, now in Sugamo Prison, still had little sympathy for the people(and perhaps deserved what they got), was also rehearsed in an indignant
letter to the editor in the Asahi on 8 November 1945 about the news that
14

15

16

17

Yutaka Sugawara, Tōkyō saiban no shōtai [The True Character of the Tokyo Trial], Jiji,
Tokyo, 1961, p. 128, quoted in Sumitani, 1973, p. 3, see above note 10. See also the related problems in translation and interpreting addressed by Kayoko Takeda in this volume,
above chap. 7.
Kyoto-fu Keisatsu Buchō, “Sensō hanzaisha happyō (hōsō) ni taisuru hankyō naisa ni kansuru ken” [Matter Relating to Internal Investigation on the Reactions to the Declaration(Broadcast) Regarding War Criminals], 14 September 1945, in Awaya (ed.), 1981, p. 352,
see above note 5.
Jules Henry, “Initial Reactions to the Americans”, in Journal of Social Issues, August
1946, vol. 2, no. 3, pp. 19-25.
Awaya (ed.), 1981, p. 127, see above note 5.

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former leaders awaiting trial at Sugamo had complained about the qualityof the food they got in prison. The writer was incensed: “they should think
about the people of Japan, who are a step away from starvation!”.18 From
this time onward, the word A-kyū senpan became synonym with someone
utterly despised and marginalised. For example, in a discussion about Japanese repatriates in the Diet in November 1947, a politician suggested that
returnees “were viewed even less sympathetically than Class A war criminals”.19 The family of General Kenji Doihara, indicted and eventually executed for his role in the invasion and occupation of Manchuria, remembered travelling far from their neighbourhood to go to the bathhouse,
somewhere where they would not be recognized as “the family of that war
criminal”.20 The granddaughter of Tōjō, Toshie Iwanami, also remembers
bitterly the discrimination suffered by her family during and in the wakeof the trial.21
Particularly notable was the transformation of the image of Tōjō,
whose attempted suicide at the time of his arrest on 12 September 1945
was the source of much contempt. The news provoked antipathy for Tōjō
for all kinds of reasons, starting with the manner and the timing of his attempted suicide. People thought that a military man such as him shouldhave used the sword rather than the gun, and that, to be taken seriously, heshould have committed suicide on the day of the surrender, not several
weeks later. Moreover, with his attempted suicide, Tōjō betrayed the expectations of those who thought he would stand up and defend the actionsof Japan. 22 However, he redeemed himself spectacularly in the eyes of
18
19

20

21

22

“Koe: Soshoku” [Voice: ‘Frugal Food’], Asahi shinbun, 8 November 1945, p. 2.
Shūichi Hōjō, Sangiin [Upper House], Honkaigi 58-gō [Plenary Session, no. 58], in Kokkai
kaigiroku [Minutes of the Diet], 28 November 1947, p. 17. The term continues to be used
regularly to denote the most culpable person or institution, in a range of non-war related
contexts. See, for a critique of the usage: Ryuji Ishido, “Goyō saretsuzukeru ‘a-kyū
senpan’” [The Continuously Misused ‘Class A War Criminal’], Yahoo! News (Japan), 7
March 2014 (available on its web site).
“Natsu no shūsen tokushū: A-kyū senpan no izoku no kokuhaku” [Special Issue on the
End of the War in Summer: Confessions of the Bereaved Families of Class A War Criminals], in Shūkan shinchō, 16-23 August 2007.
Hiroshi Akimoto, “Tōkyō saiban a-kyu senpan no izoku – 48-nen me no natsu” [The Bereaved Families of the Tokyo Trial’s Class A War Criminals: The Forty-Eighth Summer],
Shūkan yomiuri, 22-29 August 1993, pp. 168-72.
“Sensō hanzainin no happyō narabi Tōjō motoshushō no jiketsu misui ni taisuru hankyō”[Reactions to the Announcement about War Criminals and to the Suicide Attempt by Former Prime Minister Tōjō], in Awaya (ed.), 1981, p. 344, see above note 5.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far East

many Japanese because he finally fulfilled these expectations during his
defence. Although Tōjō had been despised at the beginning of the trial,
Japanese newspaper readers had plenty of opportunity to find redeeming
features in him at its end. In a news spread about the announcement of thesentences, the Asahi contrasted two defendants in photos and short captions: on the one hand, Tōjō, looking alert, straight and sharp, who discussed elements of the trial every day with his legal advisers and listenedcarefully to the judges; and on the other, wartime Foreign Affairs minister
Mamoru Shigemitsu, portrayed with his head in his hands, who was reportedly more often doodling than paying attention to the proceedings andrefused to discuss the trial with anyone, including his family.23
Japanese attitudes to the trial and to the fate of their former leaderson the dock were, unsurprisingly, ambivalent, contradictory, fragmented
and fluid, and they were also affected by the changing environment inwhich the trial took place. Between April 1946, when it began, and late1948, when those condemned to death were executed, the shock of defeat
had worn off, day to day survival had become much easier, and there grew
an increasingly critical understanding of how broader geopolitical issues
were impacting the Allied Occupation, both in the Japanese public andamongst the Allies. French Ambassador Brigadier Zinovi Pechkoff noted
in a dispatch to the French government that Tōjō’s defence had contributed to, and confirmed, a growing unease with the ‘show’ conducted in thetrial.24 The judgment, and the execution of those on the death row, then,took place in an atmosphere that was dramatically different to its beginning.
But if there was in some quarters growing sympathy for those, like
Tōjō, who provided a defence for Japan’s actions before and during thewar, there was also clear opposition to these ideas. As the world awaited
the judgment in September 1948, the widely read monthly magazine Chūō
kōron contained an analysis of the trial by legal scholar Kisaburō Yokota,
who repeatedly emphasized two central points: first, that the trial provided
a critical reckoning of the past; and second, that it marked a crucial starting point for the future of Japan and for the world at large.
23

24“Kuwawatta ‘e’ no ji no kuchimoto” [Mouth Shaped like a Letter ‘へ’], and “Kakaekomu
chintsu na hyōjō” [Grimace in Agony, Head in Hands], Asahi shinbun, 12 November 1948,
p. 2.
Archives Diplomatiques, La Courneuve (NUOI), 372QO100, Pechkoff to Foreign Minister, 7January 1948, p. 2.

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As part of his analysis, Yokota provided for his readers a summaryof the prosecution’s arguments as well as an attempt to make them plausible: he made clear to his readers that while the Manchurian incident was
not directly linked to the war in the Pacific, it did create the conditions inwhich the subsequent invasion of China and the attack on Southeast Asia
and Pearl Harbor were made possible, and that therefore, the prosecution’sargument was logical.25 Yokota thus undermined a prevalent criticism of
the prosecution in a population which thought of the Manchurian incident
and Pearl Harbor as discrete moments.26
Yokota also implicitly critiqued Tōjō’s defence, and any attempt toundermine the trial’s basis on the principle of legality, by arguing that theidea of the illegality of war had been well established before the war, even
if it had not become a legal principle: what mattered, according to Yokota,
was the intent of earlier international agreements. Therefore – his reasoning went – although the judgment had not yet been finalized, the most important outcome of the trial was already visible: its Charter, and the factthat the Tokyo and Nuremberg Trials together allowed for the prosecutionof those responsible for the invasion of neighbouring countries in the future. This, insisted Yokota, was a crucial point for the future of the humanrace that those questioning the legality of the trial were missing.27 Yokota
also argued that the Tokyo Trial’s importance lay in the symbolic boundary it drew between the past and the future. The trial, in his view, opened
the eyes of the Japanese people to the mistakes of the past, and it was themeans by which they could “awaken from a long nightmare”, and punish
those who led them into it.28 The trial was ultimately the moment when
Japan’s future started, and a fundamental role of the trial was to establish
the principles on which Japan’s future would be built.29 Implicit in thisargument is the precedence of the trial as a symbolic assertion of a break
between past and present, over its role as a legal instrument to determine
guilt.

25

26

27
28
29

Kisaburō Yokota, “Tōkyō saiban ni yoru kokusaiteki hansei” [International Reflection Dueto the Tokyo Trial], in Chūō kōron, 9 September 1948, vol. 63, no. 9, p. 5.
Saburō Ienaga, The Pacific War 1931-1945, Frank Baldwin (trans.), Random House, New
York, 1978 (originally published as Taiheiyō sensō, Iwanami Shoten, 1968), p. 248.
Yokota, 1948, pp. 7-8, see above note 25.
Ibid., p. 5.
Ibid., p. 6.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far East

As well as spirited defences of the trial such as Yokota’s, Japanesereaders were also confronted with a range of cynical views about the trial,some from overseas. On 14 November 1948, readers of the Asahi were
provided with translated selections from the editorials of international
newspapers: the New York Times suggested, but only half-heartedly, thatperhaps the Japanese people had now been provided a lesson about their
participation in politics, whereas the Washington Tribune noted the absence of the Emperor on the dock. Newspapers in the Philippines (theEvening Chronicle and the Manilla Bulletin) were even more discouragedby the capacity of the trial to produce real self-reflection and atonement inJapan, and questioned the very nature of the Japanese national character.30
The judgment, the enunciation of sentences, international reactions
to those sentences, and the preparations for the executions of those condemned to death continued to be widely discussed in the press, and increasingly also broadcast on radio. As the preparations for executions
were made, readers were told details about the construction of the gallows,
the daily routine of the condemned, their conversations with their religious advisers and their families, and eventually the order by which they
were likely to be executed. On 23 December 1948, the day of the executions, the editorial of the Asahi reminded its readers that the death of wartime leaders did not mean that the rest of the Japanese population was absolved from guilt: the death of Tōjō and others should be an occasion
once more to reflect on the past and pray for peace. At the same time, thenewspaper also noted that since a few weeks had passed between the announcement of the death penalty and the actual execution, there was lesslikelihood that those executed would be made into heroes, even if people
generally felt sorry for them and their families. Readers were told that thebodies would be cremated, and the ashes buried together with those ofother executed war criminals.31 This, and the announcement a few days
later that remaining individuals awaiting trial on Class A charges had beenreleased from Sugamo Prison, 32 appeared to mark the end of a show
30

31

32

“Tōkyō saiban: Hanketsu e no hankyō” [Tokyo Trial: Reaction to the Judgment], Asahi
shinbun, 14 November 1948, p. 1.
“Heiwa no inori” [A Prayer for Peace], editorial, Asahi shinbun, 23 December 1948, p. 1;“Tōjō-ra nana senpan kōshukei jikkō saru” [Executions Took Place for Tōjō and Six Other
War Criminals], ibid.
“A-kyū yōgisha jūkyūmei shakuhō: Tōkyō saiban – a-kyū” [19 Class A Suspects Released:
Tokyo Trial – Class A], Asahi shinbun, 25 December 1948, p. 1.

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which, as Saburō Ienaga contended in the late 1960s, remained largely
unconvincing and unsatisfactory to the Japanese people.33
15.3. Tokyo Trial vs. Other War Crimes Trials
Lessons about the war and the transformation of Japan into a different
kind of country, as flawed as these lessons were, had thus been crucial
symbolic elements of the trial for Japanese audiences during the Occupation. Soon, an additional layer of complexity was added to attitudes about
the Tokyo Trial by the shift of focus the so-called ‘Class B/C’ trials andwar criminals.
At the conclusion of the Tokyo Trial, there were still more than
1,200 prisoners in Sugamo either serving sentences or awaiting trial, as
well as several hundred suspected or convicted war criminals in prisonsoverseas. Trials for Japanese war crimes had been taking place throughout
the region (including in the Philippines, Singapore, Burma, Malaya, Indochina, China, Hong Kong, Borneo, Indonesia and New Guinea) since theend of the war. Despite the end of the Tokyo Trial and the release of ClassA suspects from Sugamo, however, there seemed to be little hope that the
pursuit of war criminals in other jurisdictions would come to an end.
In Japan, families and supporters of those convicted overseas organized an increasingly visible lobby for their repatriation. Those who returned to Japan at the end of their sentences painted a bleak picture of theconditions of imprisonment overseas. In August 1950, former ViceAdmiral Shigeru Fukutome wrote about his experience of five prisons andtheir comparative conditions for the monthly magazine Bungeishunjū, arguing that Sugamo was like a first-class hotel in comparison.34 Popular
opinion was galvanised in January 1951, when 14 war criminals were executed in the Philippines: the headline of the Mainichi shinbun pleadedwith the rest of the world: “please, no more executions”.35 Petitions to thegovernment about the repatriation of war criminals redoubled, and theconditions under which Japanese overseas, including war criminals, lived
33
34

35

Ienaga, 1978 [1968], p. 249, see above note 26.
Shigeru Fukutome, “Itsutsu no senpankangoku ni meguru” [Around the Five Prisons for
War Criminals], in Bungeishunjū, August 1950, pp. 176-85.
“Kore ijō shokei o yurushite” [No More Executions, Please], Mainichi shinbun, 2 February
1951, reproduced in Mainichi shinbun, Hitoshi Nagai, and Aiko Utsumi (eds.), Shinbun
shiryō ni miru Tōkyō saiban/BC kyu saiban [Tokyo Trial and Class B/C Trials in Newspapers], vol. 2, Gendai Shiryō, 2000, p. 130.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far Eastand awaited repatriation became part of an extensive domestic discussion
about war crimes trials overseas, the overseas incarceration of convicted
war criminals, and the impact of this incarceration on families at home,
who not just suffered from the uncertainty about the fate of their loved
ones, but also struggled with the loss of income from the main breadwinner.36
The shift of focus to those other war criminals incarcerated in Japanand overseas, and the desperate situation of their families, also had an impact on attitudes towards the Tokyo Trial and the Class A war criminals.
While some of the wartime leaders remained in prison, the majority of
those incarcerated for war crimes were ‘average’ people rather than thewartime political and military elite. According to a report on Sugamo
Prison published in the weekly magazine Shūkan Asahi in February 1952,
here [among the prisoners] is a strong feeling that we havebeen made to shoulder the responsibility for the defeat. What
was called ‘the penitence of 100 million people’ [ichiokusōzange] was at some point transformed into [the narrower
concept of] ‘war responsibility’ [sensō sekinin], and the war
criminals alone ended up being the victims of this version ofnational guilt.37

In other words, not only were the Class B/C war criminals expiating theguilt of nation, there were doing so in much greater numbers than Class A
war criminals and generally in much more severe conditions. A year later,in April 1953, in the monthly magazine Kaizō, an article tellingly entitled“Uragirareta sensō hanzainin” (“War Criminals Betrayed”) rehearsed thesame idea: writer Kōbō Abe pointed out to his readers that, if anything,
the Class B/C trials were even more unfair than the Tokyo Trial: in Abe’sview (which was widely shared), in these other trials, individuals had
been left to take the blame for superior officers, had been pursued byprosecutors ‘obsessed’ with their own belief in the accused’s guilt, hadbeen falsely identified by perfect strangers, had been punished differently
in different jurisdictions for what amounted to the same crime, or had
36

37

See the deliberations of politicians in special committees of the houses of parliament, forexample, Sangiin [Upper House], Hōmu iinkai [Committee on Legal Affairs], Sensō
hanzainin ni taisuru hōteki sochi ni kansuru shoiinkai [Select Committee Regarding Legal
Measures Applicable to War Criminals], between 21 November 1951 and 14 December
1951.
“Sugamo no naigai” [Inside and Outside Sugamo], editorial section, Shūkan Asahi, 24
February 1952, p. 9.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

been made to shoulder individually the blame for actions of many, particularly when it came to punishment for treatment of prisoners of war.
Ultimately, all had been put into untenable situations because of the actions of their own government, but as Abe pointed out, on 25 January
1953, only 12 of the prisoners in Sugamo represented this government asClass A war criminals, whereas a much greater number, 802, were serving
out sentences as Class B/C war criminals.38
At the same time, then, as many lawyers were publishing their own
acerbic critiques of the Tokyo Trial in the post-Occupation period, many
Japanese people read in the press and heard on street corners that the fateof Class A criminals was comparatively benign compared to the muchgreater mass of those convicted in other trials, and that if anything the Tokyo Trial had at least a level of fairness because it clearly targeted some ofthose who were responsible for the desperate fate of so many others, thatis, government leaders who had made decisions that sent millions of citizens to war as soldiers. Furthermore, many of those who had previously
been housed in Sugamo either as convicted or as suspected war criminals
were now back in government: prominent examples included Nobusuke
Kishi, who had been held in Sugamo on suspicion of war crimes, was released in 1948, immediately returned to politics, and was eventually elected to the Diet in 1953, and Mamoru Shigemitsu, who had been sentenced
to seven years’ imprisonment at the Tokyo Trial, was paroled in 1950, andwas elected to the Diet in October 1952. These politicians were keen to
help others who were serving out sentences and were putting their names
to organizations to help them, such as the Sensō Jukeisha Sewakai [Association of Assistance for War Convicts]. Nevertheless, they were clearly ina different class and had different future prospects than those Class B/C
war criminals who were likely to remain unemployed, poor and otherwise
discriminated against after their release.39
In that sense, the juxtaposition of the experiences of two types of
war criminals, those condemned at the Tokyo Trial and those condemnedin other courts, highlighted inequities in sheer numbers of those accused,convicted and executed; in the respective conditions of their incarceration;
38

39

Kōbō Abe, “Uragirareta sensō hanzainin” [War Criminals Betrayed], in Kaizō, April 1953,
vol. 34, no. 4, pp. 179-80.
Sandra Wilson, Robert Cribb, Beatrice Trefalt and Dean Aszkielowicz, Japanese War
Criminals: The Politics of Justice After the Second World War, Columbia University Press,
New York, 2017, pp. 191-94.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far Eastand in their prospects for rehabilitation after the end of their sentences.
The element of class that it introduced to the conception of the Tokyo Trial also meshed neatly with other ways in which the experiences of the war
were being discussed in the public sphere. In the case of soldiers in overseas battlefields, especially those in Southeast Asia and the Pacific, acommon trope in memoirs during the 1950s and 1960s was the victimization of low-ranking conscripts by their superior officers, officers who
were portrayed as brutal, willing to sacrifice many lives for little militarygain, and who made momentous life and death decisions for their men
from a safe place well behind the battle-lines. Tales of revenge against
former officers were part and parcel of the demobilization and repatriationof overseas battalions during the Occupation, but resentment continued tosimmer well into the late 1960s if not beyond.40
The Tokyo Trial, with its condemnation of predominantly highranking military men, did not contradict such narratives. Indeed, elementsof the trial allowed for further exploration of these tropes. Saburō Shiroyama’s 1974 book, Rakujitsu moyu (translated by John Bester and published in English as War Criminal), which narrated the life and death offormer Prime Minister, Foreign Minister and Diplomat Kōki Hirota,
makes a point of contrasting Hirota’s honour, selflessness and ultimately
also innocence, with the self-serving arrogance of the military men who
led Japan to war. Shiroyama details these qualities in Hirota not only in
his various political positions before and during the war, but throughout
the Tokyo Trial, making clear that Hirota nobly chose silence when he had
the opportunity to defend himself, because to speak would have provided
evidence against others.41 Shiroyama portrays Hirota as the one truly innocent victim of the Tokyo Trial, someone who had throughout his career
been a pragmatic career diplomat, convinced of the power of negotiation
rather than war to resolve international disputes. In that sense, Shiroyama’s narrative reflects a context in which there was a clear, if problematic,
dichotomy between ‘innocent civilians’ and ‘morally corrupt military’.

40

41

See, for example, John W. Dower, Embracing Defeat: Japan in the Aftermath of WorldWar II, W.W. Norton & Co., 1999, pp. 58-59; Beatrice Trefalt, “The Endless Search for
Dead Men: Funasaka Hiroshi and Fallen Soldiers in Post-War Japan”, in Christina
Twomey and Ernest Koh (eds.), The Pacific War: Aftermaths, Remembrance and Culture,
Routledge, London, 2015, pp. 270-81.
Shiroyama, 1974, pp. 270-74, see above note 13.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

15.4. Legacies
The Tokyo Trial and convicted war criminals continue to sit uneasily
across the chasm of contrasting public images of the war. Although these
are complex and contradictory, they are easily caricatured into opposing
left-wing and right-wing factions: one fighting for recognition of andapology for Japanese crimes against the populations of neighbouring
Asian countries, opposing constitutional revision of Article 9, and deeply
suspicious of the activities of those who fight for the recognition of thesacrifice of fallen soldiers; the other reactionary, pro-remilitarization, antiapology, and keen to have textbooks reflect a past of which Japanese students can be proud. The most recent iteration of such right-wing attitudes
is found in the loose political coalition of the Nippon Kaigi (the Japan
Conference), emerging from the earlier Nihon o Mamoru Kokumin Kaigi(People’s Conference to Protect Japan), which had as one of its central
missions the revision of Article 9 of the Constitution, but also to “change
the post-war national consciousness based on the Tokyo Tribunal’s viewof history as a fundamental problem”.42 Tōjō’s granddaughter Iwanami isa prominent member of Nippon Kaigi, and her strident defence especiallysince 2005 of Tōjō, and by extension of Japan’s war effort, have been portrayed as a symptom of the resurgence of the right-wing in Japan.43 Not
all family members of the Tōjō family agree with Iwanami’s views, andthe reticence of many of the relatives of Class A war criminals to speak
about their experiences has been noted regularly, including after the release of American documents about the selection and prosecution of theaccused in 1993.44
An event that both fed on and further exacerbated the polarizationof views about the war was the enshrinement of convicted war criminals
in Yasukuni Shrine in Tokyo in the mid-1970s. The spiritual presence of
the war criminals convicted at the Tokyo Trial (those executed in 1948,
and those who died later) at Yasukuni has fuelled neighbouring countries’
protests about the Shrine, about governmental visits to the Shrine, and byextension about Japanese failures to repent sincerely and atone for the war.
But just like in every aspect of the Tokyo Trial and its legacy, there are
42

43

44

Christian G. Winkler, The Quest for Japan’s New Constitution: An Analysis of Visions andConstitutional Reform Proposals 1980–2009, Routledge, London, 2011, p. 75.
David McNeill, “Family Ties: the Tōjō Legacy”, in Japan Focus/Asia-Pacific Journal,
November 2005, vol. 3, no. 11.
Akimoto, 1993, pp. 168-72, see above note 21.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far East

contradictory and complicating elements to this story. According to documents made available in March 2007 by the National Diet Library, thegovernment and Yasukuni Shrine agreed to list the names of 14 war criminals in 1969, but did not make the decision public until 1978, because of
potential political repercussions regarding the constitutional separation ofchurch and State.45 Since the Meiji period, Yasukuni Shrine had been theplace of repose for those who had given their lives as soldiers on the battlefield. But those convicted in the Tokyo Trial did not die on the battlefield, even if they were army men. Furthermore, they died well after theconclusion of the war as a result of a legal process that was accepted by
the Japanese government. Therefore, their enshrinement appears to be ablatant rejection of the Tokyo Trial and of its judgments, though clearly
this rejection is made by the Shrine as a private entity, rather than by thegovernment.
But it is also important to place this moment in the context of ongoing attempts by the Association of Bereaved Families (Nippon Izokukai)
to restore Yasukuni Shrine to the status of a national institution.46 Many
(but not all) families of fallen soldiers consider that the post-war failure of
the government to support the Shrine, because of the post-war constitution’s separation of church and State, amounts to an abdication of theState’s responsibility to commemorate the sacrifice of citizens who died in
the line of duty. Therefore, the Association of Bereaved Families has
campaigned for decades to allow for government funding of the Shrine,
and to allow official State visits to the Shrine to take place. Those lobbying the government on behalf of bereaved families might have felt that
their case would be stronger if the Shrine also included the names of wartime elite who, in a famously dynastic political system, were not only thepolitical but also often the personal predecessors of many of Japan’s postwar politicians. It is notable in this respect that the agreement between the
Shrine and the government in 1969 took place in a meeting with the Ministry of Health and Welfare, the government institution at that time responsible for matters relating to veterans and bereaved families. It is also
45

46

“Yasukuni, State in ’69 OK’d war criminal inclusion”, The Japan Times, 29 March 2007
(available on its web site).
The Association of Bereaved Families (Nippon Izokukai) is a powerful political lobby
group of the families of deceased soldiers and veterans. See Franziska Seraphim, War
Memory and Social Politics in Japan, 1945-2005, Harvard University Press, Cambridge,
2006, pp. 60-85.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

notable that a key member of the Association of Bereaved Families since1957, and one of its top officials from 1972 to 1980, was Tadashi Itagaki,
the second son of General Seishirō Itagaki, who was executed as a Class A
war criminal in 1948. Tadashi Itagaki was elected to the Japanese Upper
House in 1980 and was a strong presence in Nippon Kaigi.
But enshrining Class A war criminals did not help to satisfy the bereaved families’ demands that the government should officially support
Yasukuni Shrine: if anything, it complicated matters even more because
the Emperor stopped visiting the Shrine as soon as the listing of the namesof war criminals at the Shrine was made public. The move also brought
attention to the Shrine from China and Korea, where the presence of convicted war criminals at the Shrine bolstered emerging criticisms about Japan’s callous unrepentance for its actions during the war. Hence, rather
than resolving the issue of State recognition of wartime sacrifice, the enshrinement of war criminals created new problems, not least in making
the status of Yasukuni even more widely controversial, but also in removing from the list of visitors the Emperor himself, symbol of the sacrificeof soldiers, whose absence at Yasukuni continues to be noted andmourned.47 Whether war criminals were enshrined as an obvious politicalgesture of rejection of the Tokyo Trial, or whether they were enshrined togive additional weight to the demands of bereaved families that the State
formally recognize Yasukuni Shrine as officially commemorating fallen
soldiers, it is clear that war criminals’ symbolic presence at Yasukuni has
continued to polarize, rather than unify, views about the Tokyo Trial.
15.5. Conclusion
This chapter has examined three periods in the post-war life of the Tokyo
Trial in Japan. I began by pointing out that the story of the Tokyo Trial,even in the recent mini-series Tōkyō saiban, tends to be portrayed as apolitical game between powerful allies, from which Japanese people arelargely absent or in which they are perhaps even largely irrelevant, evenas their own wartime leaders stand accused of war crimes. Such an absence is regrettable, because it prevents an understanding of the role of theTokyo Trial beyond its own internal legal and political logic. As this chapter has shown, the Tokyo Trial also had a range of cultural, social and47

See, for example, “Yasukuni o kangaeru (1): ‘A-kyu senpan’ izokura, kunō to kattō” [Considering Yasukuni: Pain and Discord amongst the Bereaved Families of the ‘Class A War
Criminals’], Sankei shinbun, 16 August 2015.

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15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context
of the International Military Tribunal for the Far Eastsymbolic meanings in Japan, meanings which cannot be abstracted fromJapan’s domestic and historical context. These meanings evolved in concert with domestic reform as well as cultural and intellectual introspection
during the Occupation; with the growth of a domestic movement to repatriate and then release war criminals convicted in smaller trials during theearly 1950s; and since then, in the ongoing debates about the meanings of
the war, the never-ending ‘post-war’, and the nature of civil society andthe State – debates to which the enshrinement of war criminals at Yasukuni Shrine in the late 1960s added additional rancour.
In all these periods, it is clear that the ‘show’ of the trial so carefully
orchestrated during the occupation period did not tell a credible story. It
was not credible at the time, because it was transparently attached tobroader propaganda in the early days of the Occupation, and also because
its basis and its assumptions were immediately questioned at home andoverseas. The highly publicized nature of the event, tied as it was to there-education efforts of the Occupation itself, meant that such questions
were immediately available to the Japanese public to reflect on and engage with in a range of critical ways. In addition, the story that was told inthe ‘show’ that was the Trial, about the impartial punishment of leadersand of those responsible for heinous crimes, did not match the stories ofothers who were punished for war crimes: convicted so-called ‘Class B/C’
war criminals, who came home with stories of flawed trials and terrible
conditions in overseas prisons, and who felt that they, rather than a few
wartime leaders, were being made to bear the brunt of Japan’s war guilt.
It is in this wider context, not just in the walls of the courtroom itself, that we can achieve an understanding of the broader meanings of theTokyo Trial: if, according to Yokota in 1948, the lessons of the trial transcended the importance of precise legality, and if these lessons provided
the starting point for a new Japan, then Yokota was presaging, alreadythen, the fraught and endless ‘post-war period’.

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16______
Clemency for War Criminals
Convicted in the Tokyo Trials
Sandra Wilson*
16.1. Introduction
When sentences were passed on the defendants convicted by the International Military Tribunal for the Far East (‘IMTFE’) in Tokyo in 1948,
there was no thought of clemency.1 As is often the case with high-profile
crimes of exceptional gravity, courtroom rhetoric maintained that thecrimes were unrivalled in their depravity. Japanese leaders were said tohave “declared war upon civilization”. They had allegedly developed a“mad scheme for domination and control of eastern Asia” which, as they
advanced together with the Nazis, would ultimately encompass the entire
world. They did not care, the prosecutor claimed, that their plans would
mean “murder and the subjugation and enslavement of millions”. 2 The
eventual sentences reflected this assessment of the scale and significanceof the crimes. None of the 25 defendants against whom a verdict was
passed was acquitted of all charges. Seven defendants were sentenced todeath, 16 to life imprisonment, one to 20 years, and one to seven years.

*

1

2

Sandra Wilson is a historian of modern Japan. She is Professor and Academic Chair ofHistory, and a Fellow of the Asia Research Centre, at Murdoch University, Western Australia. She is the author of The Manchurian Crisis and Japanese Society, 1931-33(Routledge, 2002) and, with Robert Cribb, Beatrice Trefalt and Dean Aszkielowicz, ofJapanese War Criminals: The Politics of Justice After the Second World War (Columbia
University Press, 2017). She also publishes on Japanese nationalism and continues to research Japanese war crimes.
The material in this chapter draws substantially on Sandra Wilson, Robert Cribb, Beatrice
Trefalt and Dean Aszkielowicz, Japanese War Criminals: The Politics of Justice After theSecond World War, Columbia University Press, New York, 2017.
Joseph B. Keenan, “Opening Statement of the Prosecution”, in US Department of State,
Trial of Japanese War Criminals: 1. Opening Statement by Joseph Keenan 2. Charter of
the IMT of the Far East 3. Indictment, US Government Printing Office, Washington, 1946,
pp. 1, 2. These documents are available in the ICC Legal Tools Database: https://www.
legal-tools.org/doc/f8060c/, https://www.legal-tools.org/doc/a3c41c/, https://www.legaltools.org/doc/7dfe1e/; full indictment available in various parts.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

The verdicts and the sentences constituted a powerful declaration thatwhat Japanese leaders had done in the Second World War was abhorrent.
The Nuremberg and Tokyo Trials took place because of extraordinary events which seemed to call for extraordinary measures against theconvicted defendants. The high-flown rhetoric that surrounded the Tribunals appeared to leave no space for early release. Yet, well before the
IMTFE verdicts were handed down, the issue of clemency for Japanese
war criminals was already on the table for those convicted in the national
military tribunals administered by seven Allied governments: those of theUnited States (‘US’), the United Kingdom (‘UK’), France, the Netherlands, Republic of China, Australia and the Philippines. The governmentof the USSR had also prosecuted Japanese soldiers as war criminals, butthese trials had taken place outside the system created by the other wartime Allies, and little information was available about them.3 Discussions
about clemency by the seven Allied governments were not an expressionof any form of weakness, but rather were the result of a normal bureaucratic impulse, supported by political considerations that were specific to
the war crimes trials. Eventually, clemency was extended also to war
criminals convicted at the IMTFE. Despite the importance of this postsentencing phase, however, it has attracted much less attention in thescholarly literature than have the prosecutions themselves.4
3

4

On the national military tribunals, see Wilson, Cribb, Trefalt and Aszkielowicz, 2017,
above note 1; Kerstin von Lingen (ed.), War Crimes Trials in the Wake of Decolonization
and Cold War in Asia, 1945-1956: Justice in Time of Turmoil, Palgrave Macmillan, Cham,
2016; Kirsten Sellars (ed.), Trials for International Crimes in Asia, Cambridge University
Press, 2016; Morten Bergsmo, CHEAH Wui Ling and YI Ping (eds.), Historical Origins ofInternational Criminal Law: Volume 2, Torkel Opsahl Academic EPublisher, 2014 (http://
www.toaep.org/ps-pdf/21-bergsmo-cheah-yi). On Soviet trials, see V.A. Gavrilov and E.L.
Katasonova (eds.), Iaponskie voennoplennye v SSSR 1945–1956, Demokratiia, Moscow,
2013, pp. 16–17; Sherzod Muminov, “Prejudice, Punishment, and Propaganda: PostImperial Japan and the Soviet Versions of History and Justice in East Asia, 1945–1956”, inBarak Kushner and Sherzod Muminov (eds.), The Dismantling of Japan’s Empire in East
Asia: Deimperialization, Postwar Legitimation and Imperial Afterlife, Routledge, London,
2017, pp. 154–58; George Ginsburgs, The Citizenship Law of the USSR, Nijhoff, The
Hague, 1983, p. 318; Andrew Barshay, The Gods Left First, University of California Press,
Berkeley, 2013, pp. 139–41; Valentyna Polunina, “From Tokyo to Khabarovsk: Soviet
War Crimes Trials in Asia as Cold War Battlefields”, in von Lingen (ed.), 2016, pp. 239–
60. The author thanks David Wells for translating the Russian-language source.
As exceptions, see Yoshinobu Higurashi, Tōkyō saiban [The Tokyo Trial], Kodansha[Kōdansha], Tokyo, 2008, chaps. 7 and 8; R. John Pritchard, “The Gift of Clemency Following British War Crimes Trials in the Far East, 1946-1948”, in Criminal Law Forum,

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16. Clemency for War Criminals Convicted in the Tokyo Trials

In any formal criminal proceeding, the moment of sentencing is
crucial. The severity or leniency of a sentence expresses the view held by
the court – and by extension the wider society – of the gravity of the offence and the extent of the perpetrator’s culpability. At that moment, thesentence is meant to be conclusive and literal: the convicted criminal will
suffer the penalty as prescribed, because that is the penalty appropriate to
the crime in question in the circumstances that have been elaborated before the court. In practice, however, sentences are subsequently altered –usually reduced – in all or most justice systems. Variations to sentencestake different forms and are granted for different reasons. They may be
implemented as individual pardons or as general amnesties; through a system of parole, where conditional release is granted after a certain period;or as commutation of a death sentence or outright reduction in the lengthof prison time to be served. All of these variations can be classed as formsof clemency.5
There are four principal grounds for clemency, all of which wereused in Allied dealings with Japanese war criminals. One category is
granted as mitigation, usually soon after a sentence has been handed down.
Mitigation follows some form of reconsideration of the circumstances of
the crime or the fairness of sentencing, either by the original court or byanother authority. In a second category, sentences are reduced as a reward:
for good behaviour as a prisoner, or for offering evidence on behalf of theState in relation to other crimes. A third category of clemency depends
upon the benevolence of a ruler, and may be less predictable. Monarchs,

5

1996, vol. 7, no. 1, pp. 15-50; R. John Pritchard, “The Parameters of Justice: the Evolutionof British Civil and Military Perspectives on War Crimes Trials and their Legal Context(1942-1956)”, in John Carey, William V. Dunlap and R. John Pritchard (eds.), International Humanitarian Law, Vol. 3: Origins, Challenges and Prospects, Brill, Leiden, 2006,
pp. 277–326; John Mendelsohn, “War Crimes Trials and Clemency in Germany and Japan”, in Robert Wolfe (ed.), Americans as Proconsuls: United States Military Governmentin Germany and Japan, 1944-1952, Southern Illinois University Press, Carbondale, 1984,
pp. 226–59; Sandra Wilson, “The Sentence is Only Half the Story: From Stern Justice toClemency for Japanese War Criminals, 1945-1958”, in Journal of International Criminal
Justice, 2015, vol. 13, pp. 745–61; Wilson, Cribb, Trefalt and Aszkielowicz, 2017, seeabove note 1.
In US official thinking, the term ‘clemency’ in the case of war criminals was used only for
reduction of sentence, not for parole: see Wilson, Cribb, Trefalt and Aszkielowicz, 2017, p.
121, see above note 1. In this chapter, ‘clemency’ refers to all variations of sentence that
resulted in earlier release of prisoners, including parole, which, in practice, was simply
used as a form of early release of war criminals.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

presidents or other authorities can offer amnesties, pardons or early release as acts of generosity that are unrelated to the original crime. Such
benevolence may be granted to commemorate anniversaries or auspicious
events, out of consideration of the prisoner’s state of health, or simply as
an expression of the prerogative to grant mercy. In a fourth group, clemency is driven by pragmatic or political circumstances that are unrelated
to the legal process, or to the personalities or circumstances of rulers or
prisoners. It may be granted as a matter of convenience for the imprisoning power, for instance, to reduce accommodation pressure in an overcrowded prison,6 or because of specific political goals. Clemency existed
in several forms in the home countries of the governments that prosecutedJapanese war criminals, and had therefore become more or less normal formany officials.7
In this chapter, I examine the process by which clemency was extended to the surviving men convicted at the IMTFE, and analyse the motives of Allied authorities in granting clemency. I begin with the moves
towards early release of lower-ranking war criminals in the period before
the San Francisco Peace Treaty took effect in April 1952. I then discuss
the implications for all war criminals of the peace treaty, and the subsequent multinational negotiations over the fate of the surviving men convicted in the Tokyo Tribunal.
16.2. Clemency for Japanese War Criminals Before 1952
Once the prison doors closed on the 25 men sentenced at the Tokyo Tribunal, relatively routine and familiar procedures took over, despite thespecial nature of the prisoners’ crimes. Allied governments remainedcommitted to making war criminals accountable for their offences, to upholding the validity of the original trials, and to keeping faith with victimsof Japanese war crimes and their families. They were also increasingly
convinced, however, that Japan, along with Germany, should be incorporated unequivocally into the Western camp in the worldwide struggle
against Communism. They recognized that if the governments of the two
67

For an example from the fourth category, see “Zimbabwe’s Mnangagwa Pardons 3,000
Prisoners to Ease Overcrowding”, Reuters, 21 March 2018 (available on its web site).
On discretionary justice in Anglo-American systems, see Carolyn Strange, “Mercy andParole in Anglo-American Criminal Justice Systems, from the Eighteenth to the Twentyfirst Century”, in Paul Knepper and Anja Johansen (eds.), The Oxford Handbook of theHistory of Crime and Criminal Justice, Oxford University Press, 2016, pp. 573–96.

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16. Clemency for War Criminals Convicted in the Tokyo Trials

countries were to be persuaded to take on new responsibilities, the wartime Allies could not continue to insist on treating them as former enemies. Concessions would have to be made on war criminals, among otherissues.8
By the time the IMTFE verdicts were handed down, many Japanese
defendants had already been convicted in the national military tribunals.
Prosecutions of 5,700 Japanese military personnel were well under way,
and convicted prisoners were incarcerated in Tokyo and in numerous other locations in Asia and the Pacific. US authorities had started to discuss
the possibility of remission of sentence for good behaviour as early as
August 1946, only a few months after the opening of the Tokyo Trial.
When former Prime Minister Hideki Tōjō and six of his compatriots
went to the gallows in December 1948, American officials dealing withwar criminals were actively considering ways of releasing and rehabilitating the prisoners they held.9 It was not only the Americans. Leading British officials, too, had decided by then that war criminals convicted in British military tribunals should be eligible for remission of sentence,10 and
Dutch authorities had already granted eight months’ remission to all the
war criminals they had convicted and whose sentences they had confirmed.11
The first moves towards adjustment of war criminals’ sentencesarose from bureaucratic and legal imperatives: prisoners’ terms were reduced for good behaviour, and there was a serious attempt to standardize
sentences to ensure that prisoners served similar terms for comparable
offences. This early imperative to reduce sentences can thus be related to
the first two grounds for granting clemency outlined above. Good conduct
brought rewards; and prison terms were also reduced after the authorities
had reconsidered the parity of sentencing across different cases. In part,
8
9
10

11

Wilson, 2015, p. 748, see above note 4.
Higurashi, 2008, pp. 316–17, see above note 4.
“Trial of War Criminals (Army Order 31/1945) Review of Sentences”, 6 May 1948, National Archives (UK) (‘NA (UK)’), LCO 53/101.
President, Hoofdgerechtshof van Indonesië, “Aftrek preventieve hechtenis m.b.t. oorlogismisdadigers”, Arsip Nasional, Jakarta, 20 September 1949, Alg. Sec. 289; “WarCriminal List Sentenced by Dutch Courts: Sugamo Prison”, 6 November 1953, Nationaal
Archief, Netherlands (‘NA (NL)’) Buitenlandse Zaken/Code-Archief 45–54, 2.05.117,
inv.nr. 7703. The author is grateful to Robert Cribb for translating the Dutch-language material cited here.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

however, such initiatives also reflected broad political goals, corresponding to the fourth category of clemency as well. Allied governments not
only wanted justice to be done; they also wanted it to be seen to be done,in order to demonstrate the positive values of democracy to Japan andGermany.12 They feared, too, that obvious anomalies in sentencing mightundermine the legitimacy of the war crimes trials and the perceived quality of Allied justice. From the beginning, then, the granting of clemency
demonstrated the interplay among legal, administrative and political impulses in Allied dealings with Japanese war criminals.
After the IMTFE sentencing, and the executions that quickly followed, the surviving war criminals disappeared rapidly from public sightas they began their new lives in Sugamo Prison in Tokyo. In Sugamo,
which was administered during the Allied Occupation of Japan (19451952) by the US Eighth Army, they joined their compatriots convicted at
the large US military tribunal in Yokohama, and, increasingly, war criminals convicted elsewhere in Asia and the Pacific by other Allied military
tribunals.
Moves towards clemency intensified in 1949. British authorities reduced the sentences of one-quarter of the prisoners they had convicted
who would still be in jail at the end of September 1949, and, in addition,
decreed that all war criminals convicted in British tribunals would be eligible for remission of one-third of their sentences for good behaviour. In
practice, release for good behaviour was automatically granted.13 In July
1949, 55 prisoners were granted remissions by the French president tocommemorate Bastille Day.14 On Christmas Day, US military authorities
also announced that war criminals’ sentences would be reduced for good
behaviour,15 and in March 1950 they implemented a formal remission andparole system in Sugamo, under which prisoners could be released after
12

13

14

15

Higurashi, 2008, pp. 316–17, above note 4; Frank M. Buscher, The U.S. War Crimes Trial
Program in Germany, 1946–1955, Greenwood Press, New York, 1989, p. 50.
Pritchard, 2006, pp. 310–14, see above note 4; J.A. Pilcher to Esler Dening, 21 August
1953, NA (UK), FO 371/105446; “Draft Staff Study—Remission of Sentence”, 25 February 1949, NA (UK), FO 1060/266; “Remission of Sentence for Good Conduct”, 21 February 1949, NA (UK), FO 1060/266; Shapcott to No. 1 War Crimes Sentences Review Board,
3 February 1949, NA (UK), WO 311/567; Brown to Shapcott, 22 November 1949, NA(UK), WO 311/567; Minute, L. Phillips, 28 January 1953, NA (UK), FO 371/105432.
Note à l’intention de Monsieur le Président de la République, 9 January 1953, Archives
nationales, Paris (‘AN (F)’), 4 AG663.
Higurashi, 2008, pp. 322–24, see above note 4.

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16. Clemency for War Criminals Convicted in the Tokyo Trials

serving one-third of their original sentences, for which pre-trial time incustody also counted. One prisoner convicted by the IMTFE benefited
from the parole system operating in Sugamo. Former (and future) Foreign
Minister Mamoru Shigemitsu had received the shortest sentence at theTokyo Trial, that is, seven years. He was released under the Sugamo parole system in 1950. By April 1952, when the Occupation ended, US military authorities had paroled 892 war criminals.16
Not everyone supported clemency for Japanese war criminals.
Some politicians, military men and officials in the former belligerent
countries thought the war criminals potentially dangerous if released, orwere wary of their own domestic constituencies, which, authorities believed, insisted on continued vengeance for Japanese war crimes.17 Nevertheless, by the end of the Allied Occupation, clemency for Japanese war
criminals, like clemency for German war criminals, had become verymuch the bureaucratic norm.18 Of all the governments that had convicted
Japanese war criminals in the loosely co-ordinated system of Allied trials,
only the Australian and the Filipino governments had failed to institutesystems of sentence reduction or parole, despite a handful of pardons by
the president of the Philippines.19
16.3. War Criminals and the San Francisco Peace Treaty
Thus far, two factors had allowed and facilitated the steady if not rapid
release of Japanese war criminals before the expiry of their formal sen16

17

18

19

[George T. Hagen] to Chief, Legal Section, Liquidation Agency, “Japanese War Criminals
Convicted by United States Military or Naval Commissions and by the IMTFE and Still
Serving their Sentences”, 17 May 1952, US National Archives and Records Administration, College Park MD (‘NARA’), RG59, Box 25, folder: 5 (Parole Board: SCAP Parole
System); SCAP Circular No. 5, “Clemency for War Criminals”, 7 March 1950, Diplomatic
Archives (Gaimushō Gaikō Shiryōkan) (‘GSK’), Tokyo, D’ 1.3.0.1, 3.
See, for example, the initial views of British Deputy Judge Advocate General BrigadierHenry Shapcott, quoted in Pritchard, 2006, p. 306, above note 4.
On clemency in Germany, see Buscher, 1989, above note 11; Kerstin von Lingen, Kesselring’s Last Battle, Alexandra Klemm (trans.), University Press of Kansas, Lawrence, 2009,
pp. 173–78; Norbert Frei, Adenauer’s Germany and the Nazi Past, Joel Golb (trans.), Columbia University Press, New York, 2002; Mendelsohn, 1984, see above note 4.
Hitoshi Nagai, Firipin to taiNichi senpan saiban: 1945–1953 nen [The Philippines and the
Trials of Japanese War Criminals: 1945-1953], Iwanami Shoten, Tokyo, 2010, p. 261;
Sharon Williams Chamberlain, “Justice and Reconciliation: Postwar Philippine Trials ofJapanese War Criminals in History and Memory”, unpublished Ph.D. dissertation, George
Washington University, 2010, pp. 102, 113.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

tences. First, prisoners convicted in courtrooms spread over about 50 venues across the Asia-Pacific region had been increasingly concentrated in
Sugamo Prison in Tokyo. The existing Sugamo cohort was augmented
initially by US-convicted prisoners from Shanghai, Kwajalein, Guam andManila. From 1949 onwards, for a combination of legal, pragmatic, economic and political reasons, other prosecuting powers had also chosen to
send the war criminals they had convicted to serve out their sentences inTokyo, rather than retaining them in other prisons in the region. 20 The
second factor was that once transferred to Occupied Japan, all war criminals still serving sentences were governed by US military regulations, including the parole regulations, regardless of which government had convicted them. So, all decisions on war criminals in Sugamo were made by asingle authority, that is, the US military, which was therefore free to makeunilateral decisions about release or continued incarceration. In 1952,
however, the situation of convicted war criminals changed dramatically.
The San Francisco Peace Treaty, which came into force in April, restored
Japanese sovereignty after six and a half years of Allied occupation. Nevertheless, Article 11 of the treaty stipulated that decisions about the sentences of war criminals convicted in national military tribunals would notrest with the Japanese government, but would henceforth be made by theprosecuting government, on the recommendation of Japan; variations of
the sentences of prisoners convicted by the IMTFE would be made by amajority of the governments involved, again after recommendation by
Japan.21 Up to this point, prisoners in Sugamo had been subject only to
US regulations, but Article 11 meant that all of the original prosecuting
governments now had to face up separately to the questions of whether,
how and when to grant clemency to convicted Japanese war criminals. In
the case of the prisoners convicted at the IMTFE, the governments which
had participated in the Tokyo trial and had subsequently ratified the peace
treaty were to review the sentences jointly.
The end of the Occupation of Japan and the application of Article
11 of the peace treaty completely changed the institutional, political anddiplomatic framework within which decisions were made about Japanese
20

21

On the gradual concentration of prisoners in Sugamo, see Wilson, Cribb, Trefalt andAszkielowicz, 2017, pp. 140–47, above note 1.
Article 11, Treaty of Peace with Japan, in John M. Maki (ed.), Conflict and Tension in the
Far East, University of Washington Press, Seattle, 1961, pp. 136–37 (https://www.legaltools.org/doc/3mf4ms/).

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16. Clemency for War Criminals Convicted in the Tokyo Trials

war criminals. In April 1952, the US military authorities handed over control of Sugamo Prison to Japanese civilian authorities, and with that move,
the US military parole system ceased. Article 11 meant that control of thesentences of prisoners in Sugamo reverted to the governments that hadoriginally convicted them. Negotiations over the fate of these prisoners,
and of convicted war criminals still held outside Japan by the Philippines
and Australia, now had to be conducted bilaterally, between each of therelevant governments and the Japanese authorities, while the collective
powers responsible for the IMTFE prisoners had to work out a way ofmaking joint decisions about them.
On all sides, new institutional arrangements were thus required if
war criminals were to be granted any form of clemency. In Japan, it wasnecessary to construct a system to ‘recommend’ variation of sentences as
required by Article 11. A new law, passed on the day the peace treaty tookeffect, empowered an independent agency of the Ministry of Justice, theNational Offenders Prevention and Rehabilitation Commission(‘NOPAR’), to recommend clemency to foreign governments. 22 Within
the governments of the former wartime Allies, new arrangements were
gradually made to review NOPAR’s requests for clemency. In September
1952, President Harry S. Truman authorized the establishment of the
Clemency and Parole Board for War Criminals in Washington, DC to deal
with Japanese war criminals.23 Within other governments, clemency requests were typically handled by foreign ministry officials. Clemency applications for prisoners convicted at the IMTFE were reviewed at meetings in Washington of representatives of the governments deemed to havethe right to participate in such negotiations.24
With the end of the Allied Occupation of Japan, the Japanese public
took up the cause of war criminals with a zeal that surprised Allied observers. Campaigners applied pressure directly on the foreign governments which had jurisdiction over war criminals, but addressed themselves most forcefully to their home government. The public campaigns
supported repatriation of convicted war criminals to their home country,
22

23

24

English translations of the text of Law No. 103 appear in various archival sources. See, forexample, NA (UK), FO 371/105447.
Harry S. Truman, Executive Order 10393, “Establishment of the Clemency and Parole
Board for War Criminals”, 4 September 1952, NARA, RG220, Box 1, folder: Minutes –Clemency and Parole Board, M-1 through M-30.
Wilson, Cribb, Trefalt and Aszkielowicz, p. 227, see above note 1.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

reductions in sentence, an end to the death penalty and, ultimately, early
release. Activists put the Japanese government, like the German government, under serious pressure, precisely at the time both were being asked
to strengthen the Western alliance against the Soviet Union and its allies.
The US, the UK and their allies came to believe they needed to soften
their stance on war criminals in order to assist conservative Japanese andGerman governments to maintain their domestic authority, and thus tofunction effectively as Cold War allies.25
16.4. Negotiations over the IMTFE Prisoners
In late 1952, only 12 men sentenced by the IMTFE remained in Sugamo
Prison, all serving life terms. Of the 25 who had initially received a verdict, seven had been executed, five others had died in prison, and, as wehave seen, one had been paroled by US authorities during the Occupation.
By comparison, over 1,200 war criminals convicted in national tribunals
remained incarcerated. 26 Despite the low number of IMTFE-convictedprisoners, negotiations over clemency for them were, in one crucial respect, far more complicated, and much ink was spilled over the fate of the
12 men.
Under Article 11, the seven national governments (aside from theSoviet Union) which had convicted Japanese suspects were free to maketheir own independent decisions to vary sentences. Such decisions often
proved difficult, and in practice the separate governments did loosely consult with each other, as well as with the Japanese government, but formally at least, they could do as they chose.27 In the case of the IMTFE prisoners, however, multiple governments had to reach at least a majority
agreement before any decision was made. In this circumstance, there wasa large scope for clash of perceived national interests among the erstwhile
Allies, and by 1956, solidarity among the Allies on the subject of war
criminals had been severely tested. Cold War rivalries and other international tensions were sharply revealed in the discussions on the fate of the
IMTFE prisoners. Overall, the Allied governments showed an increasing
desire to free the IMTFE prisoners, as did the separate national authorities
Sandra Wilson, “The Shifting Politics of Guilt: the Campaign for the Release of Japanese
War Criminals”, in Kushner and Muminov (eds.), 2017, pp. 87–106, see above note 3.
26 “Release of War Criminals and its Progress”, September 1954, GSK, D’ 1.3.0.3-1, vol. 2, p.
9.
27 See Wilson, Cribb, Trefalt and Aszkielowicz, 2017, chaps. 7–9, see above note 1.
25

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16. Clemency for War Criminals Convicted in the Tokyo Trials

responsible for war criminals convicted in military tribunals. They were
not willing, however, to take any action that might impugn the validity ofthe original trial, or that might seem to display weakness in relation to
Japanese war crimes. Reconciling the two imperatives proved to be atricky balancing act.
The discussions over IMTFE sentences reveal two things. First, negotiations over clemency did not take place in a vacuum, and could not be
separated from broader, non-legal issues. As the Allied powers jostled for
position in the post-war world, arguments about what to do with the IMTFE prisoners easily became entangled with questions of international politics and international status that, at times, were remote from the crimes
committed by the Japanese military or the circumstances of the war criminals. Second, the governments involved showed a growing disinclination
to antagonize Japan and a marked attempt to avoid being singled out as
particularly vengeful.
Before negotiations could even begin, there were protracted arguments over which governments had the right to join in.28 The Allied powers decided in 1952–1953 that only those that had participated in the
IMTFE and had also ratified the peace treaty would be eligible. This ruling combined the provision of Article 11 – which stated that power to vary
the sentences of those convicted in Tokyo “may not be exercised except
on the decision of a majority of the Governments represented on the Tribunal, and on the recommendation of Japan” – with the provisions of Article 25, which limited the benefits of the treaty to those governments that
had signed and ratified it.29 The Republic of China, the Soviet Union, India and the Philippines had participated in the IMTFE but had not ratified
the peace treaty and thus were ruled ineligible to review the sentences.30
Political and diplomatic questions were raised among the Allies,
however, about all these exclusions. The US government had originallyadvocated the inclusion of all the above-named countries, plus Pakistan.
The issue of participation by India and Pakistan, in particular, consumed
much time and energy, in highly complex legal, political and diplomatic
28

29

30

More detail on deliberations over IMTFE sentences is available in ibid., pp. 224–36, on
which subsequent paragraphs here are based.
Treaty of Peace with Japan, 1961, pp. 136–37, 144–45, see above note 21. Korea and China were nevertheless entitled to specific, limited benefits under the treaty, as provided in
Article 21.
Wilson, Cribb, Trefalt and Aszkielowicz, 2017, p. 225, see above note 1.

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discussion among the governments involved, including the UK as theformer colonial master. Pakistan had not existed during the Second World
War, having been established with the partition of India and independence
from the UK in 1947. The Allied powers jointly ruled Pakistan eligible toreview sentences because, as part of the former British India, it wasdeemed to be a State formerly at war with Japan; it had participated (aspart of British India) in the IMTFE; and, unlike India, it had signed andratified the peace treaty.31 The Indian government, though it did not muchcare about war criminals specifically, was very concerned about its own
international position, and about the implications of recognizing Pakistan
as a successor State to British India, and thus objected to Pakistan’s inclusion. In this way, the fate of the IMTFE prisoners became entangled withthe politics of decolonizing India and newly independent Pakistan, which
in fact had nothing to do with Japanese war crimes.32
Similarly, the inclusion or exclusion of the Soviet Union and Communist China posed difficulties that, in a direct sense, were irrelevant to
the fate of the IMTFE prisoners. The US government argued to its allies
that the USSR should be included in deliberations on sentence reviews,
because it was expected to oppose clemency. Soviet recalcitrance, the US
authorities reasoned, would then encourage Japanese hostility to the
USSR, which was an important consideration in the context of the Cold
War.33 The British authorities pointed out that it would then be difficult toleave out Communist China, but that evaluating China’s claim would emphasize the diplomatic difference between the UK and the US: the former
diplomatically recognized Beijing rather than Taipei [Taibei], whereas thelatter did the opposite. Ruling out the Soviet Union and China would thenrequire the exclusion of the Philippines as well. The US government eventually gave way to the British view in each case, including that of India.34
Eight countries became the joint arbiters of IMTFE sentences: Australia,
Canada, France, the Netherlands, New Zealand, Pakistan, the UK, the US.
31

32
33

34

Draft reply to Indian government attached to McPetrie to Fitzmaurice, Foreign Office, 19
May 1953, NA (UK), DO 35/5799, p. 2.
See, for example, the papers in NA (UK), DO 35/5799.
Telegram, British Embassy, Washington to Foreign Office, London, “Japanese Major War
Criminals”, 16 June 1952, NA (UK), DO 35/5797.
Thomas, Commonwealth Relations Office, to Gandee, Ottawa, 23 May 1952, NA (UK),DO 35/5797; Telegram, Foreign Office, London, to British Embassy, Washington, 25 June
1952, NA (UK), DO 35/5797; Telegram, British Embassy, Washington, to Foreign Office,London, 29 April 1953, NA (UK), DO 35/5799.

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16. Clemency for War Criminals Convicted in the Tokyo Trials

They were joined in the final stages by the Philippines, which only ratified the San Francisco Peace Treaty in 1956. Representatives of the eight
governments, acting on instructions from home authorities, met in Washington, DC between 1953 and 1955 to decide on the fate of the IMTFE
prisoners.35
In October 1952, the Japanese agency NOPAR asked the Allied
powers to grant clemency to all 12 IMTFE prisoners left in Sugamo,36 but
the various governments replied that individual applications would benecessary. By September 1954, NOPAR had recommended clemency for
all the IMTFE war criminals.37 In working for releases, NOPAR came torely on a strategy that proved successful, in that it allowed the Allied
powers to authorize releases without seeming to have given way to Japanese pressure, and without freeing the prisoners unconditionally. NOPAR
applications routinely emphasized age and infirmity, and requested humanitarian consideration for the prisoner. In response, the representativesof the governments meeting in Washington were able to authorize releases
through the device of “special medical parole”, a consideration that fits
into the ‘ruler’s benevolence’ category of the granting of clemency. Threeof the IMTFE prisoners were aged over seventy in 1952 – Sadao Araki,
Shunroku Hata and Jirō Minami – and in April 1953, NOPAR recommended their release on the grounds of their age.38 In January 1954, theeight governments reviewing sentences agreed unanimously to grant special medical parole to the oldest, Minami, who was nearly 80 and was be-

35

36

37

38

Relevant records can be found in the following files. In NA (UK): FO 371/105450; FO
371/110509; FO 371/110512; FO 371/115294; FO 371/115295; DO 35/5799; DO 35/5800;
DO 35/5801. In NARA, see: RG 220, Box 1, folder: Working Papers 4/28/52-5/31/53 (2);
RG 220, Box 5, folder: Working Papers re A, B & C war criminals, 6/1/53–5/31/55; RG
220, Box 1, folder: Minutes – Clemency and Parole Board for War Criminals, M-81
through M-113.
[NOPAR], “Decision on Recommendation on Release by Clemency of A Class War Criminals”, 20 October 1952, NARA, RG220, Box 1, folder: Working Papers 4/28/52–5/31/53(2).
“Clemency for Class ‘A’ Japanese War Criminals: Summary of the Present Position”, 20
August 1954, NA (UK), DO 35/5801, p. 2.
Turner, U.S. Embassy, Tokyo, to Department of State, “Applications for Clemency ofClass A War Criminals”, 21 April 1953, NARA, RG220, Box 1, folder: Working Papers 4/
28/52–5/31/53 (3); “Clemency for Class ‘A’ Japanese War Criminals: Summary of the
Present Position”, 20 August 1954, NA (UK), DO 35/5801, p. 1.

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lieved to be at death’s door.39 The prospect of a death in prison, especiallyof an elderly or infirm prisoner, was extremely unpalatable to all the governments in question, as it would make the prosecuting power look heartless and vengeful. Minami was quickly freed, though he survived for almost two years after his release.
Pressure on the governments reviewing sentences to authorize releases began to increase markedly – both from Japanese sources and fromexternal events – from about 1954 onwards. In Japan, there was no notable pressure from the vigorous public campaign that was so active on behalf of war criminals. Public activism concentrated heavily on the men
convicted in the national tribunals, rather than on the IMTFE prisoners: inmainstream discourse, there was far more sympathy for the ‘ordinary soldiers’ who were believed to have been caught up in circumstances forwhich they were not responsible than there was for Japanese leaders who
had dragged their people into a disastrous war. 40 But at the elite level,
among prominent Japanese figures who had the opportunity for personal
meetings with important Allied authorities, there were some who had aclose association with war crimes trials, and for whom the release of the
IMTFE prisoners was a deeply personal issue.
Mamoru Shigemitsu, the first IMTFE prisoner to be released on parole, was Foreign Minister and Deputy Prime Minister from 1954 to 1956,
while Ichirō Kiyose, defence lawyer for Hideki Tōjō at the Tokyo Tribunal, served as Education Minister from December 1955 onwards. Nobusuke Kishi, who had been arrested as a potential IMTFE defendant but
was not charged, became Secretary-General of the ruling Democratic Party (Minshutō) in 1955. Masayuki Tani, a former Foreign Minister who had
also been arrested as a potential defendant at the Tokyo Tribunal, became
a powerful Foreign Ministry adviser and was appointed ambassador to the
39

40

Telegram, Department of State to U.S. Embassy, Tokyo, 30 December 1953, NARA,
RG220, Box 5, folder: Working Papers re A, B & C war criminals, 6/1/53–5/31/55; C.T.
Crowe, “Clemency for Japanese Class ‘A’ War Criminals: Araki, Hata and Minami”, 9February 1954, NA (UK), FO 371/110509, p. 1.
Rintarō Fukuhara, quoted in “Zoku. Sugamo no naigai: senpan wa dō naru ka” [Inside andOutside Sugamo: What Will Become of the War Criminals? Part 2], Shukan Asahi[Shūkan asahi], 16 August 1953, p. 10; Ichirō Hatakeyama, “Senpan keishisha no izoku
nimo onkyū o: dai hankyō o yonda onkyūhō no kaisei” [Extending Pensions to the Descendants and Families of War Criminals: Big Response to Revision of the Pension Law],cover story, Toki no hōrei, August 1954, no. 144, p. 9; Higurashi, 2008, p. 360, see above
note 4.

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United States in 1956. With such people in positions of influence, pressure on other governments for the prompt release of the IMTFE prisoners
increased rapidly.41 Shigemitsu was especially important. A career diplomat and former ambassador to China, the Soviet Union and the UK who
had served three times as Foreign Minister by the time he appeared before
the IMTFE, Shigemitsu was not at all embarrassed to have been convicted
as a war criminal. During his tenure, there was a particular emphasis on
diplomatic efforts to secure releases.42 The Lower House of the JapaneseDiet (the parliament) also passed a resolution on 19 July 1955 calling on
the relevant foreign governments to release all war criminals in time forthe tenth anniversary of the end of the war on 15 August 1955, though it
had no discernible effect.43
The governments reviewing IMTFE sentences came under furtherpressure in 1953–1954 when Japanese prisoners began to return from theSoviet Union and the People’s Republic of China (‘PRC’). Authorities inboth countries had retained large numbers of former Japanese soldiers,and had designated some of them as ‘war criminals’. In December 1953
and March 1954, a total of 1,231 Japanese ‘war criminals’ were repatriated from the Soviet Union, in events that were extensively covered by theJapanese and international press, with more returns promised.44 Then in
August 1954, the People’s Revolutionary Military Commission of the
PRC announced that Beijing would pardon and release 417 Japanese prisoners, again referred to as ‘war criminals’. They arrived in Japan on 27
41
42

43

44

Higurashi, 2008, pp. 371–72, see above note 4.
“Sensō Jukeisha Sewakai Zenkoku Kyōgikai no jōkyō” [The Situation of the National
Society for Assistance to War Criminals], 20 July 1955, National Archives of Japan, Tokyo (‘NAJ’), 4A-22–7306, p. 2.
Kokkai kaigiroku, Shūgiin, Honkaigi 43-gō, 19 July 1955, p. 1. Diet records are available
on the web site of the National Diet Library (http://kokkai.ndl.go.jp). An English translation of the resolution sent to foreign governments is available as “Resolution Requestingan Immediate Release of War Criminals”, GSK, D’ 1.3.0.3–9-1, p. 359. See also Tadanori
Nakayama, Kokkai kaigiroku, Shūgiin, Honkaigi 43-gō, 19 July 1955, p. 1.
“The Development on Negotiations on Repatriation in Moscow” (Japanese report), 2 November 1953, NA (UK), FO 371/105448; “Jap. Prisoners Repatriated”, Recorder, Port Pirie, South Australia, 2 December 1953, p. 1; “Japanese Prisoners Freed by Russia”, Advertiser, Adelaide, 22 March 1954, p. 16; “Jōsen daihyō o tsurekomu” [With Some of the Departing Passengers], Asahi Shimbun [Asahi shinbun], 8 July 1953, p. 7; “Kōan maru
jōsensha: yonhyakunijūmei no shimei wakaru: Soren dainiji hikiage” [The Passengers on
the Kōan maru: the Names of the 420 Revealed: the Second Repatriation from the Soviet
Union], Asahi Shimbun [Asahi shinbun], 19 March 1954, p. 3.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

September 1954.45 Governments in the ‘free world’ were afraid that thecontrast between Communist clemency and Western reluctance to releasewar criminals would encourage leftism in Japan and turn the Japanesepeople away from support of the Western camp in the Cold War. Shigemitsu, as Foreign Minister, exploited this fear in his meetings with
Western leaders.46 The French representative on the Washington committee reviewing IMTFE sentences, for one, urged the committee to resume
its discussions on release on the grounds that the Communist powers wereprepared “to get ahead of the western powers in granting clemency”.47
In cases where the device of special medical parole could not be
used, deciding on clemency nevertheless proved problematic. After
Minami’s release in January 1954, there was a stalemate among the eight
governments over the next case, which was Araki’s. In the first instance,
he was considered for ordinary parole or other form of clemency. The US,
the Netherlands, France and Pakistan favoured the immediate release of
Araki and then presumably of the remaining prisoners. US officials, inparticular, felt themselves to be under serious pressure from Japan, andbelieved that the US would be blamed if Araki were not released. The US
government was committed to improving relations with Japan, andwished to be seen to be accommodating Japanese preferences in relation
to war criminals. The governments of the UK, Canada, Australia and New
Zealand, however, wanted Araki to serve a set number of years to represent his sentence of life imprisonment. The earliest release date uponwhich these governments would agree was 1956.48 With four governments

45

46

47
48

LING Yan, “The 1956 Japanese War Crimes Trials in China”, in Morten Bergsmo,
CHEAH Wui Ling and YI Ping (eds.), Historical Origins of International Criminal Law:
Volume 2, op. cit., p. 218; Barak Kushner, Men to Devils, Devils to Men: Japanese War
Crimes and Chinese Justice, Harvard University Press, Cambridge, 2015, pp. 258–59; Adam Cathcart and Patricia Nash, “War Criminals and the Road to Sino-Japanese Normalization: Zhou Enlai and the Shenyang Trials, 1954–1956”, in Twentieth-Century China, 2009,
vol. 34, no. 2, p. 95.
“Telegram from the Embassy in Japan to the Department of State”, 6 January 1955, in US
Department of State, Foreign Relations of the United States, 1955–1957, Washington, DC,
1991, vol. 23, part 1, p. 3.
Pelletier to Dunning, Department of State, 4 October 1954, NA (UK), FO 371/110512.
Submission: “Japanese Major War Criminals: Araki”, [undated], NA (UK), DO 35/5800, p. 1;
Telegram, CRO to High Commissioners, 9 March 1954, NA (UK), DO 35/5800, p. 2; Joy, British Embassy, Washington, to Marten, Foreign Office, London, 16 February 1954, NA (UK),DO 35/5800; Joy to Marten, 19 March 1954, NA (UK), DO 35/5801; “Sensō Jukeisha Sewakai

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16. Clemency for War Criminals Convicted in the Tokyo Trials

on each side of the disagreement, there was a standoff. Anglo-Americansolidarity began to show signs of strain because of the differing stances on
the IMTFE prisoners and, more broadly, different priorities in dealing
with Japan. Under these circumstances, the matter was allowed to lapse.
In June 1955, however, it appeared that Araki might die in prison, and theeight governments unanimously approved medical parole.49 Araki in fact
lived until 1966.
By the time Araki was freed, the eight reviewing governments had
agreed to release three more IMTFE prisoners on medical parole: in October 1954, Shunroku Hata (who died in 1962) and Takazumi Oka (whodied in 1973),50 and in March 1955, former admiral Shigetarō Shimada,
who survived until 1976.51 After Araki was released in June 1955, seven
IMTFE prisoners remained in Sugamo. Apart from Shigemitsu, who had
been unilaterally paroled by the US military authorities in 1950, no one
had yet been freed except for medical reasons, and no agreement had beenreached on how to release the IMTFE prisoners except on medical
grounds. Events moved rapidly, however, in 1955 and 1956.
During 1954, there had been some discussion among the eight governments of a proposal to release all IMTFE prisoners on parole after 10
years, which would have meant that the last of them was released in 1956.
Only the UK and Australia opposed such leniency by this stage, but noprogress was made.52 Then in April 1955, the Australian government, notorious for its hard line on Japanese war criminals, abruptly changed its
stance. In accordance with a new policy of fostering good relations with

49

50

51

52

Zenkoku Kyōgikai no jōkyō” [The Situation of the National Society of Assistance for War
Criminals], 20 September 1955, NAJ, 4A-22–7306, p. 2.
American Embassy, Tokyo, to Department of State, “War Criminals”, 2 October 1952,
NARA, RG59, Box 3020; documents in NAJ, 4B-23–5836; Higurashi, 2008, pp. 358–59,
see above note 4.
[Memorandum to Japanese Government Authorizing Release on Special Medical Parole ofHata and Oka], 26 October 1954, NA (UK), FO 371/110512.
Telegram, British Embassy, Washington, to Foreign Office, London, 28 March 1955, NA(UK), FO 371/115294.
New Zealand Department of External Affairs, Aide-Memoire, March 1954, NA (UK), DO
35/5801; Dunning, Department of State, to Parsons, British Embassy, Washington, 11 October 1954, NA (UK), DO 35/5801; Memorandum, “Clemency for Japanese War Criminals: Views and Practice of the Various Powers Concerned in the Exercise of Clemency”,[late 1954], NA (UK), FO 371/110512; Crowe, “Clemency for Class ‘A’ Japanese War
Criminals”, 8 December 1954, NA (UK), FO 371/110512.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Japan, it announced the introduction for the first time of an Australian system of parole for all Japanese prisoners. The guidelines allowed for release after a maximum of 10 years.53 Although the system was not fully
implemented at this stage, the trend was clear to British officials, who realized they were now out of step with even the most recalcitrant of their
allies. Wanting to avoid a “dangerous isolation” from its allies, which inany case could overrule the UK, and to forestall criticism from the Japanese for being less lenient than others,54 the British cabinet, in July 1955,
approved the parole of IMTFE prisoners after 10 years in custody.55
In Washington on 7 September 1955, the representatives of the relevant governments agreed, on this principle, to the parole of Kingorō
Hashimoto, Okinori Kaya, and Teiichi Suzuki. 56 On 6 December 1955,
parole was approved as well for Naoki Hoshino, Hiroshi Ōshima andKōichi Kido, who had also been in prison for 10 years.57 Kenryō Satō was
the last to be freed, on 31 March 1956 (see Table 1).
Name

Former position

Penal
term

Disposition

Date ofparoleRemarks(as at 31
Mar. 1956) /Later career

MamoruShigemitsu(1887-1957)

Diplomat, Foreign Minister,Greater East Asia Minister

7
years

Parole by
US military
authorities

21 Nov.
1950

Foreign
Minister and
DeputyPrime Minister, 19541956

Jirō Minami(1874-1955)

Army Minister, Commanderof Kwantung Army, Governor-General of Korea, Privy
Councillor

Life

Medicalparole3 Jan.
1954

Died on 5
Dec. 1955

53

54

55

56

57

Casey, Minister for External Affairs, and Cramer, Minister for the Army, Cabinet submission: “Japanese Minor War Criminals”, [April–May 1956], National Archives of Australia,
271958, p. 288.
Crowe, Foreign Office, London, to Makins, British Ambassador, Washington, DC, 6 July
1955, NA (UK), FO 371/115295.
“Cabinet: Conclusions of a Meeting of the Cabinet Held at 10 Downing Street, S.W.1, on
Thursday, 28th July, 1955, at 2.30 p.m.”, NA (UK), CAB 128/29, p. 6.
British Embassy, Washington, to Foreign Office, London, 7 September 1955, NA (UK),FO 371/115295.
Minutes, 19 December 1955, NARA, RG220, Box 1, folder: Minutes – Clemency andParole Board for War Criminals, M-81 through M-113.

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16. Clemency for War Criminals Convicted in the Tokyo Trials
Name

Former position

Penal
term

Disposition

Date ofparoleRemarks(as at 31
Mar. 1956) /Later career

Shunroku
Hata(1879-1962)

Commander of China Expeditionary Force, Army Minister

Life

Medicalparole30 Oct.
1954

Under medical care

TakazumiOka(1890-1973)

Chief of Navy Affairs Bureau, Vice-Minister of Navy

Life

Medicalparole30 Oct.
1954

Under medical care

Shigetarō
Shimada(1883-1976)

Navy Minister, Chief ofNavy General Staff

Life

Medicalparole4 Apr.
1955

Under medical care

Sadao Araki(1877-1966)

Army Minister, Education
MinisterLife

Medicalparole18 June1955

Under medical care

KingorōHashimoto(1890-1957)

Army officer, Director ofImperial Rule Assistance
Association, parliamentarian

Life

Parole17 Sept.
1955

OkinoriKaya(1889-1977)

Finance Minister

Life

Parole17 Sept.
1955

Teiichi Suzuki(1888-1989)

Army General, Minister ofState, President of Cabinet
Planning Board

Life

Parole17 Sept.
1955

Naoki
Hoshino(1892-1978)

Vice-Minister of Financial
Affairs (Manchukuo), Chief
Cabinet Secretary

Life

Parole13 Dec.
1955

Kōichi Kido
(1889-1977)

Education Minister, Healthand Welfare Minister, Home
Minister, Lord Keeper of
Privy Seal

Life

Parole16 Dec.
1955

HiroshiŌshima(1886-1975)

Army General, Ambassador
to Germany

Life

Parole16 Dec.
1955

Kenryō Satō(1895-1975)

Army General, Chief ofMilitary Affairs Bureau

Life

Parole31 Mar.
1956

Justice Minister, 19631964

Senior positions in
Tōkyū Corporation

Table 1: Dates and Category of Release of IMTFE Prisoners, 31 March 1956.58

58

Adapted from NOPAR, table attached to “Statistical Report on War Criminals in Sugamo
Prison, Japan (as at 31 March 1956)”, NAA 271958, p. 395.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

16.5. Conclusion
During the four years of deliberations over the fate of the IMTFE prisoners, the balance of the relationship between Japan and its former enemies
had changed significantly. The demands of the Cold War, and the normalization of relations between Japan and other countries more generally, had
trumped any remaining Allied desire for vengeance against Japan for theprevious war. For their part, Japanese leaders, who came from the same
ruling class as the IMTFE prisoners and in some cases were closely connected with them, had shown increasing confidence in making their demands for release, and, implicitly, in rejecting the grounds on which they
had been convicted.
The Allied method of dealing with war criminals convicted at the
IMTFE was much more cumbersome than the arrangements for dealing
with prisoners convicted in national tribunals, whose fate was decided bysingle governments. The result, however, was the same. As at 31 July
1956, four months after Kenryō Satō’s release, there were only 222 prisoners left in Sugamo.59 The last Japanese war criminals left Sugamo in
May 1958, three weeks after the last German war criminals incarceratedin Landsberg Prison in Bavaria had been freed.60 Despite all the Allied
rhetoric about the exceptional nature of Japan’s war crimes, relatively
normal administrative arrangements had overtaken the justice process.
The politics of dealing with war criminals and the workings of bureaucracy had pointed in the same direction, and had reinforced each other. Japan’s re-emergence in the international scene in the 1950s, together withthe general administrative impulse towards clemency for imprisoned
criminals, had brought an end to the long process of Allied reckoning withJapan’s leaders and with ordinary military personnel for their part in thedisastrous war in the Asia-Pacific region.

59

60

NOPAR, “Statistical Report on War Criminals in Sugamo Prison, Japan (as of 31 July
1956)”, NAA 271958, p. 65.
Three senior German war criminals, convicted at the International Military Tribunal in
Nuremberg, remained in Spandau Prison in Berlin, in the joint custody of the US, the UK,
France and the Soviet Union. The last of them, Rudolf Hess, died in 1987. Fewer than 30
lower-ranking German war criminals were still imprisoned in the Netherlands, France,
Belgium and Italy after 1958. See Frei, 2002, pp. 229–30, above note 18.

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17______Spaces of Punishment
Franziska Seraphim*
17.1. Introduction
When wartime entrepreneur and so-called ‘Class A’ war crimes suspect
Ryōichi Sasakawa was released from Sugamo Prison by Allied authorities
in December 1948, the media widely reported his pledge to henceforthdedicate himself to caring for the families of the executed war criminals
and making life easier for those still imprisoned. By all accounts, he followed through. 1 A controversial figure on the political far-right whose
wildly successful motorboat-racing enterprise helped rebuild Japan’s
shipbuilding industry in the 1950s and 60s, Sasakawa went out of his way
to console the spirits of the Allied-convicted who did not survive imprisonment and help secure employment for some of those who did. Sasakawa went on to undertake international philanthropic work, and many
Japanese-Studies programmes in the United States and Europe have greatly benefited from the Sasakawa Peace Foundation financially.
Similarly, the early release of Nazi munitions industry boss and USconvicted war criminal Alfried Krupp von Bohlen und Halbach from*1

Franziska Seraphim is a historian of modern and contemporary Japan and the Director of
the Asian Studies Program at Boston College. Her work has focused on the contested placeof Japan’s empire and war in Asia in post-war politics, society and culture. She is currently
writing a social history of the Allied transitional justice programme after World War II
from a global and comparative perspective. Titled Geographies of Justice, it relates the different spatialities of the programme and its transformation through the 1940s and 1950s
through the lens of Japanese and German war criminals’ prisons, from their vast spread
across Asia and Europe to the dynamics within the American-run prisons in Sugamo, Tokyo and Landsberg, Bavaria, and the (inter)national politics of clemency. She thanks the
Shelby Cullom Davis Center at Princeton University and its community of fellows for critical intellectual stimulation on the theme “Law and Legalities” that generated the conceptual framework presented here. She also thanks the National Humanities Center in North
Carolina for providing much needed time and resources for writing.
Fascinating details can be found in a collection of letters written to Ryōichi Sasakawa,edited and introduced by Takashi Itō (ed.), “Senpansha” o sukue: Sasakawa Ryōichi toTōkyō saiban 2 [Saving the War Criminals: Sasakawa Ryōichi and the Tokyo Trial, Volume 2], Chūō Kōron Shinsha, 2008.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Landsberg War Criminal Prison No. 1 in January 1951 caused a media
frenzy. A contemporary cartoon quipped that as journalists and cameramen chased Krupp on his way from the prison to a local inn for a grandcelebration, Krupp answered their questions as to his future plans with atart “I intend to continue my ancestors’ business”.2 Krupp was able to negotiate with the Allied occupation the return of his entire wartime assets.
He used his wealth and his connections to help many of his fellow Landsberg inmates restart their lives.3 Like Sasakawa, Krupp eventually set up aphilanthropic foundation, and his hometown Essen today boasts an Alfried Krupp Memorial Hospital and an Alfried Krupp Gymnasium, among
other public works.
Clearly, the rich and famous had an uncanny way of bouncing backfrom military defeat and criminal indictment, especially after the Görings
and the Tōjōs, the villains of the international military tribunals at Nuremberg and Tokyo, had been executed. Sasakawa and Krupp occupied
similar places in the tiered system of the Allied war crimes trials, notamong either the top political and military leaders tried by the Nuremberg
and Tokyo Tribunals or the great mass of war criminals prosecuted in national military courts all across Europe and Asia, but in a distinct group of
mainly civilian elites nominally under Allied jurisdiction. These Nazi
elites were prosecuted by an American court in the 12 Subsequent Nuremberg Proceedings (Nürnberger Nachfolgeprozesse) between 1946 and1949, whereas their Japanese counterparts, about 50 Class A war crimes
suspects, were released without charge during that same time.4 The final
group of 17 left Sugamo Prison in late December 1948 after awaiting trial
for three years, among them the future prime minister Nobusuke Kishi,
the industrialist Yoshisuke Ayukawa, and also Sasakawa.5 All three became instrumental thereafter in providing the social glue between those
2

3

4

5

Die Tat, 10 February 1951, reproduced in Ulrich Brochhagen, Nach Nürnberg: Vergangenheitsbewältigung und Westintegration in der Ära Adenauer, Junius, 1994, p. 67.
Nachlass Arthur Dietzsch, Aufzeichnungen und Gesuche betr: Landsberger Haft, 1947–50,
Institut für Zeitgeschichte, Munich, ED112/1.
The dominant explanation for the discontinuation of trials against the Japanese leadershipis that the Cold War changed Allied priorities, but Yuma Totani finds procedural and personnel impediments equally important. Yuma Totani, The Tokyo War Crimes Trial: The
Pursuit of Justice in the Wake of World War II, Harvard University Press, 2009, pp. 69–77.
Sandra Wilson, Robert Cribb, Beatrice Trefalt, and Dean Aszkielowicz, Japanese War
Criminals: The Politics of Justice After the Second World War, Columbia University Press,
2017, pp. 117–18.

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17. Spaces of Punishment

remaining in prison, their families and support networks, and post-war
society emerging from foreign occupation and struggling to regain bothinternal cohesion and external credibility.
In this chapter, I sketch out in broad strokes the early parameters ofa social history that complemented, even qualified, the legal and political
history of the war crimes programme in geographically contingent ways.
The status ‘war criminal’ and its demarcation from related categories relevant in the course of apprehension, detention and especially incarceration – most commonly ‘prisoner of war’ (‘POW’) – was not clearly defined. Rather, it was a bone of contention among the prosecuting powers
and especially with the International Committee of the Red Cross(‘ICRC’), when innovations in humanitarian law intersected with those ininternational criminal law.6 The contestation over the conditions of punishment pivoted on defining the rights of the accused and the convicted.
Above all, this contest draws attention to the ways in which the politics of
post-war justice were usable – and later used – to address the social needsof various peoples and publics around the globe. Not only were thesecommunities differently invested in seeing war crimes punished, but theirinvestment took on new meanings as their respective ‘priorities’ changed
over time. This involved a range of legalities outside criminal trials, concerning the broader post-war operational law of militaries, parliamentary
legislative proceedings, and penal law. Moreover, it involved the physical,
conceptual and discursive legal spaces associated with them.
Recognizing a plurality of legal spaces – apart from the legal pluralism of the various law codes used in the courtrooms – expands the purview of the war crimes programme not only to different geographicalscales but also towards greater temporal nuance as their overlap and interplay shifted over time. It is not simply that the Cold War intervened, as if
with an invisible hand, to make enemies of the former Allies and allies offormer enemies, in the course of which justice became a political commodity. More broadly, a social conception of the war crimes programme
as it played out in different legal spaces is akin to Hajimu Masuda’s reading of the (early) Cold War as social politics. By this, he means the ways
in which perceived (anti-)Communist and (post-)colonialist enmities “‘fit’
6Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950, Oxford University Press, 2014, especially chap. 8 (“Revising the Geneva Conventions, 1946–49: Synthesizing the Old and New Justice”).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

with the social needs of populations around the world”, many of whomused them to deal with the social divisions and contradictions stemmingfrom recent wars and foreign occupation. 7 Analogous to this, the war
crimes programme offered space and opportunity to shape social relations
between victims and perpetrators of wartime atrocities; winners and losers
in war; occupiers and the occupied in places struggling to assert national,
ethnic, or post-colonial sovereignty; or within national publics legitimating new forms of national, regional or global hegemony. This crucial insight reflects a perspective germane to critical geography, not a moral
judgment of what should or should not have happened.
Neither the codification of abstract (international) law by legal
elites nor the handful of top military and political leaders who stood trial
in Nuremberg and Tokyo give sufficient insight into this broader sociospatial conception of the war crimes programme. It is more instructive toprobe how the unprecedented challenge of apprehending, prosecuting andpunishing a diverse mass of war criminals played out practically on thelevel of local communities directly affected by the physical presence of
war criminals on trial or in prison, and discursively through the management of public sentiments among (inter)national audiences. The social
field of signification that the Allied war crimes programme generated
across time and global space reveals a multiplicity of parallel and competing legalities – claims on different kinds of legal obligations – that afforded even those without the power to challenge the sentences a measure ofownership in the programme.8 Fundamental to this was the contradiction
between the legal treatment of war criminals as individual offenders incourt and their physical punishment en masse. This contradiction, in turn,required a legal status definition and demarcation from related yet separate categories in military and civilian criminal law that were deeply embedded in multiple spatial and indeed geographical contexts.
The recent literature in the interdisciplinary field of legal geography
is particularly relevant here, for it takes as its subject the nexus of the social, the legal, and the spatial, arguing powerfully for the intersectionality
7

8

Hajimu Masuda, “Epilogue: The Cold War as Social Politics”, in Cold War Crucible: The
Korean Conflict and the Postwar World, Harvard University Press, 2015, pp. 281–88.
This overlaps with but goes well beyond the purely apologetic ‘past-political obsessions’,
detailed for Germany in Norbert Frei, Vergangenheitspolitik: Die Anfänge der Bundesrepublik und die NS-Vergangenheit, C.H. Beck, Munich, 1996, Deutscher Taschenbuch Verlag (‘DTV’), Munich, 1999.

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17. Spaces of Punishmentof fields that have heretofore remained separate.9 Legal geographers trace
the making of legal spaces and their relation to social control across geopolitical and geocultural scales.10 Relatedly, legal historians now call for a
global intellectual history that recognizes the “multi-scalar formation oflegal ideas”,11 while some legal scholars argue forcefully for a new methodological approach to the socio-legal nexus in global governance via theidea of “transnational legal pluralism”.12 Crucial for a new understandingof the war crimes programme writ global is the sensibility that anthropologists bring to legal pluralism, which draws attention not only to the existence of overlapping and competing legal structures but also to the chronology by which some of those structures took root or were replaced –“fade in and out” in the words of the Benda-Beckmanns.13 The establishment and negotiation of territorial jurisdiction, whether among competingor co-operating prosecuting powers in the same region, or by one power
in different regions as military and political borders were being redrawn,
were undeniably important, both to the conduct of trials and to the punishment of the convicted, with profound consequences in the way justice
was experienced socially.14
9
10

11

12

13

14

Benjamin Forest, “Placing the Law in Geography”, in Historical Geography, 2000, vol. 28, p. 8.
Foundational texts are Nicholas K. Blomley, Law, Space, and the Geographies of Power,
Guilford Press, New York, 1994; Nicholas Blomley, David Delaney, and Richard T. Ford(eds.), The Legal Geographies Reader: Law, Power and Space, Wiley-Blackwell, Malden,
2001; and, more recently, Irus Braverman, Nicholas K. Blomley, David Delaney, and Alexandre Kedar (eds.), The Expanding Spaces of Law: A Timely Legal Geography, Stanford
University Press, 2014.
Milinda Banerjee and Kerstin von Lingen, “Forum: Law, Empire, and Global IntellectualHistory: An Introduction”, in Modern Intellectual History, July 2018, vol. 17, no. 2, pp. 1–4.
Peer Zumbansen, “Defining the Space of Transnational Law: Legal Theory, Global Governance, & Legal Pluralism”, in Günther Handl and Joachim Zekoll (eds.), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization, Martinus Nijhoff, Leiden, 2012, pp. 53–86.
Franz von Benda-Beckmann and Keebet von Benda-Beckmann, “Places that Come and Go:
A Legal Anthropological Perspective on the Temporalities of Space in Plural Legal Orders”,
in Braverman et al. (eds.), 2014, pp. 30–52, see above note 10.
On (extra)territoriality, see Kal Raustiala, “The Geography of Justice”, in Fordham Law
Review, vol. 73, no. 6, 2005, pp. 2501–60; On overlapping legal spaces or ‘hyperterritoriality’, see David Delaney, The Spatial, the Legal and the Pragmatics of World-Making:Nomospheric Investigations, Routledge-Cavendish, New York, 2011, p. 138. More generally, see Charles S. Maier, “Consigning the Twentieth Century to History: Alternative Narratives for the Modern Era”, in The American Historical Review, 2000, vol. 105, no. 3, pp.
807–31.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

Such global methodologies must be complemented by a close reading of local experiences of ‘place’, in this case carceral geographies. 15
Places of incarceration – from the detention camps for war crimes suspects to the prisons where the convicted served out their sentences longafter the trials had concluded – arguably constituted the physical spacesthat were most deeply endowed with social meanings of justice throughpunishment. This was viscerally true in terms of both the social relations
that developed on account of the penal law governing the space inside thewalls or fences, as well as the normative expectations and practical logistics levelled on a place of punishment from outside by local, regional, national or indeed international communities. Carceral geographers analysea wide spectrum of socio-legal spaces of confinement and mobility, including prison communities as well as networks of prisons, and how they
are co-produced. They see themselves in critical dialogue with the classic
works of Michel Foucault on the birth of the modern prison and governmentality, David Harvey and Henri Lefebvre on the production of space,
Giorgio Agamben on the state of exception, amongst others.16 In this case,war criminals prisons served as physical markers of the perpetrators
among communities of victims (in the areas occupied by Imperial Japan
and Nazi Germany), within perpetrator nations and among the perpetrators themselves, and via the media for public audiences of the victors (forexample, in the United States). They produced their own meanings – lessof the criminal past itself but all the more powerfully of the (changing)post-war present. And yet, it mattered that this was part of something bigger: a ‘global’ claim to justice, which made discrepancies and inconsistencies on the ground appear all the more problematic.
In the following, I consider three legal spaces – discursive, procedural and physical – where geopolitical concerns and the logistics of managing thousands of war criminals intersected in the early post-war years.
They illuminate the persisting ambiguities in the legal and social status of
1516Foundational anthologies are Dominique Moran, Carceral Geography: Spaces and Practices of Incarceration, Taylor & Francis, London, 2015, and Dominique Moran and Anna
K. Schliehe (eds.), Carceral Spatiality: Dialogues between Geography and Criminology,
Palgrave Macmillan, London, 2017.
Apart from the classic texts themselves, I have found useful Lauren L. Martin and Matthew L. Mitchelson, “Geographies of Detention and Imprisonment: Interrogating Spatial
Practices of Confinement, Discipline, Law, and State Power”, in Geography Compass,
2009, vol. 3, no. 1, pp. 459–77; Mary Gibson, “Global Perspectives on the Birth of the
Prison”, in The American Historical Review, 2011, vol. 116, no. 4, pp. 1040–63.

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17. Spaces of Punishment

the category ‘war criminal’ as well as the unprecedented challenges ofmass incarceration, and the opportunities this eventually produced forJapanese and Germans to claim a measure of ownership of the Allied war
crimes programme even without touching the sentences themselves. The
discursive space addressing specific audiences in different parts of theworld was one of competing visions of how to punish war criminals. The
procedural space, embedded in local territorialities, regulated legal policies of sorting war criminals from POWs and collaborators. The physicalspace I highlight here is the prison for convicted war criminals writ large(networks of prisons) and small (the social relations inside a prison andwith its community).
17.2. How to Punish War Criminals
The year 1943 saw a flurry of preparatory activism around the world forthe legal pursuit of war atrocities that were then escalating and whose fullscale was still unimaginable. The Australian government commissioned
one of the first official inquiries into war atrocities, against Australian
POWs in Papua New Guinea and East Timor, before the United National
Commission for the Investigation of War Crimes (later called the United
Nations War Crimes Commission (‘UNWCC’)) began its work in thefall.17 The Chinese Kuomintang [Guomindang] started lists of suspected
Japanese war criminals, but was hampered by a corrupt military justicesystem and a lack of legal infrastructure capable of dealing with war
crimes.18 The Soviet Union bothered less with preparatory work and instead went straight to trial, prosecuting one Ukrainian and three Nazis in
Kharkov in December 1943 and executing them in front of 50,000 spectators.19

17

18

19

Dean Aszkielowicz, The Australian Pursuit of Japanese War Criminals, 1943-1957: FromFoe to Friend, Hong Kong University Press, 2017, pp. 37–38.
Barak Kushner, Men to Devils, Devils to Men: Japanese War Crimes and Chinese Justice,
Harvard University Press, 2015, p. 43. See also Anja Bihler, “The Legacy of Extraterritoriality and the Trial of Japanese War Criminals in the Republic of China”, in Kerstin vonLingen (ed.), War Crimes Trials in the Wake of Decolonization and Cold War in Asia,
1945–1956: Justice in Time of Turmoil, Palgrave Macmillan, 2016, pp. 93–116.
Michael J. Bazyler and Frank M. Tuerkheimer, “The Kharkov Trial of 1943: The First
Trial of the Holocaust?”, in Forgotten Trials of the Holocaust, New York University Press,
2014, pp. 15-43. For a contemporary American commentary, see George Creel, War Criminals and Punishment, R.M. McBride & Co., New York, 1944, pp. 151–63.

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Meanwhile, European exile governments in London and American
lawmakers in Washington gathered jurists from governments and academia into international and national committees and debated the goals, scopeand organization of a war crimes programme that was to overcome thefailures of the trials after World War I.20 The London International Assembly, an unofficial body of experts representing the European exile
governments, issued their proposal for a future international criminal
court, with provisions on the execution of sentences, pardons and revisions. It did not recommend that the envisioned court have command overits own penal institution or make decisions about pardons but relegated
the responsibility to enforce penalties to the relevant prosecuting state.21
The International Commission for Penal Reconstruction and Development,
founded in 1941 in London and a forerunner of the UNWCC, deliberated
about the rights of those accused of war crimes and the rules that should
guide their detention and court appearance. Chaired by Professor Stefan
Glaser, the Polish Minister to the Government of Belgium, this committee
went out of its way to elaborate on the need for impeccable democratic
credentials in the safeguarding of the rights of those accused of war
crimes so as to stay the hand of vengeance. The focus lay in particular on
minimizing the length and punitive quality of pre-trial detention and guaranteeing the accused full access to legal counsel through both a national
and international supervisory authority. 22 The ICRC went even further,seeking revisions to the Geneva Convention that would strengthen its
powers to inspect prisons and camps, and improve the treatment of POWs
and civilian detainees ahead of criminal prosecutions of those accused of
war crimes.23

20

21

22

23

Kerstin von Lingen, “Setting the Path for the UNWCC: The Representation of European
Exile Governments on the London International Assembly and the Commission for Penal
Reconstruction and Development, 1941–1944”, in Criminal Law Forum, 2014, vol. 25, no.
1, pp. 45–76.
London International Assembly, The Punishment of War Criminals: Recommendations of
the LIA, London, 1944, pp. 27–28.
International Commission for Penal Reconstruction and Development, “Committee on the
Rights to Be Accorded to Persons Suspected or Accused of Crimes”, July 1943, in folder“UNWCC - International Commission for Penal Reconstruction and Development and its
Committees and Sub-Committees: Reports and Notes – 15867”, Reel 37, United Nations
Archive.
Lewis, 2014, pp. 234–35, see above note 6.

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In the following year, the American and for their part the Australianpublic responded to the mounting evidence of atrocities with a diverse
array of voices on how to punish war criminals, unwilling to leave things
to the United Nations. As Dean Aszkielowicz has shown, Japanese war
crimes were a deeply sensitive national identity issue for Australians not
to be left to others, although this did not preclude close administrative cooperation with the Allies. 24 In the United States Congress, meanwhile,
there were hearings before the Committee on Foreign Affairs on a joint
resolution requesting the president to appoint a commission to co-operatewith the United Nations in March 1945. They gave a strong sense of theurgency with which representatives of the American public demandedboth information about and a say in the punishment of war criminals. The
unanimous invocation of the “Leipzig travesty”, as the well-connected
propagandist George Creel called the mistake of having left the punishment of German WWI criminals to Germans in his 1944 treatise War
Criminals and Punishment,25 made physical custody of war criminals thatmuch more imperative. The apprehension of war criminals before they
could escape (‘plugging the loopholes’) and their extradition from neutral
countries therefore became a major focus, opening up new legal spaces ofterritoriality, jurisdiction and international diplomacy that became thebread and butter of war crimes policymakers when the war ended. The
majority of those testifying before Congress, however, clearly grasped
onto the call for capture and (capital) punishment as a tool that would ‘deter World War III’.26 Nevertheless, contrary to the London International
Assembly, American public sentiment demanded a punishment regime
geared towards making sure that ‘no guilty person escaped’ rather thanthat ‘no innocent person be unjustly convicted’”.27
Managing the sentiment of revenge, especially among the soldiers
charged with capturing and detaining suspected war criminals, required
help from the learned community. The Historical Service Board of the
24
25
26

27

Aszkielowicz, 2017, p. 38, see above note 17.
Creel, 1944, chap. 8, see above note 19.
The most vocal but by no means the only proponents of this line of argument were representatives of the Society for the Prevention of World War III, founded in 1944, an organization that advocated for eliminating Germany as a military threat as the first order of importance after the war.
United States, House of Representatives, Committee on Foreign Affairs, Punishment of
War Criminals, 22 and 26 March 1945, Pub. L. No. HRG-1945-FOA-0006 (available on
ProQuest Congressional).

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American Historical Association, the most prestigious academic organization of historians in the United States, was commissioned to prepare a 50page illustrated G.I. Roundtable pamphlet entitled “What Shall Be Donewith the War Criminals?”.28 It was intended for use in preparing broadcasts on the Armed Forces Radio. Complete with a study guide, teachers’
notes, and a short list of further readings, it introduced the main points ofdiscussion in a highly accessible way, from “Who are the war criminals?”to “How shall the guilty be punished?”. The pamphlet also offered shorthistorical precedents from around the world for a few key legal questions,such as whether ‘superior order’ was to be a legitimate defence.29 It assumed that the future international criminal court would decide on prison
facilities for the convicted although each country involved would doubtlessly determine the type of punishment it saw fit. Acknowledging thevictims’ strong feelings in favour of summary execution of all perpetrators,
the pamphlet ventured thatfor political and economic reasons and to avoid creating‘martyrs’, it might be wiser to impose sentences of death on
certain leaders and then commute them to prison terms at
hard labor for life, perhaps on lonely islands in distant seas,
whence escape would be impossible.30

This, of course, would minimize soldiers’ interaction with them, thereby
eliminating the need to manage their thirst for revenge.
The most sought-after visionary on how to punish war criminals
was undoubtedly the Harvard criminal law professor and criminologist
Sheldon Glueck, a Polish-born authority on juvenile delinquency who
wrote prolifically in support of the war crimes programme. He may wellbe the main author of the pamphlet, judging from the fact that it reproduced the main ideas put forth in his 1944 book War Criminals: Their
Prosecution and Punishment. In time for Germany’s surrender in May
1945, the Office of the Judge Advocate General for the US Army commissioned from Glueck a sophisticated and highly forward-looking programme of imprisonment. Though it never became stated policy, it foreshadowed much of what would later transpire in Sugamo and Landsberg
28

29
30

Sheldon Glueck, American Historical Association (ed.), “What Shall Be Done With the
War Criminals?”, Department of War, August 1944, EM-11, p. 39 (available on the Association’s web site).
Ibid., chap. 7, “Are ‘Superior Orders’ a Legitimate Defense?”, pp. 27–31.
Ibid., p. 39.

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Prisons.31 Entitled “A Penologic Program for Axis War Criminals”, it was
divided into six chapters and made recommendations on everything fromconsidering penal philosophy to prisons’ amenities and how often “warcrime prisoners” (as opposed to prisoners of war) were allowed to write orreceive letters. Glueck had the American public foremost in mind as hesketched out the theoretical and practical challenges of an unprecedented
situation, namely the mass incarceration of mass murderers and its public
reception over time. His treatise was part of a whole genre of writings by
American intellectuals on ‘what to do with Germany’, from the philosopher John Dewey and the psychoanalyst Erich Fromm to the anthropologist Margaret Mead and the theologian Robert Niebuhr.32 Given the comparative paucity of independent (non-governmental) writings on Japanand the fact that Japan had not yet been defeated at the time of his writing,
Glueck’s effort to include Japanese war criminals, however tentatively,
speaks to the desire not only on his but also on the US government’s partto consider the problem of Axis war criminals as a structural one thattranscended specific local contexts. Still, Germany stood undeniably frontand centre in contemporary thinking, while Japan, in Glueck’s opinion,
presented a less complicated case.
The treatment of war criminals was essentially a multi-purpose
propaganda tool in Glueck’s view to “educate and re-educate the American public”, to afford the victims a measure of retribution, and to aid in“the mental hygiene and moral rehabilitation of the German people”.33 No
matter how ghastly the revelations of Nazi atrocities, Glueck wrote,
Americans’ ethnic, religious and business ties to the country of the perpetrators as well as to the victims made for a disturbingly diverse range of
attitudes towards German war criminals that demanded careful management. The long-term treatment of war criminals was central to this en31

32

33

Sheldon Glueck, “A Penologic Program for Axis War Criminals”, 9 May 1945, RG 153,
entry 145, Box 16 “Imprisonment of German and Japanese War Criminals 1946-49”, NARA II, College Park; also in the Sheldon Glueck Papers, 1916-1972, Harvard Law Library.
The following discussion is partially based on Franziska Seraphim, “A “Penologic Program” for Japanese and German War Criminals, 1945-1958”, in Joanne Cho, Robert Lee
and Christian Spang (eds.), Transnational Encounters and Comparisons between Germany
and Japan, Palgrave Macmillan, 2016, pp. 185–205.
For a discussion of American intellectuals on Germany, see Felicitas Hentschke, Demokratisierung als Ziel der amerikanischen Besatzungspolitik in Deutschland und Japan, 1943 –1947, LIT, Münster, 2001, pp. 83–98.
Ibid., p. 16.

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deavour. Japan, in contrast, invited a baser reaction, Glueck ventured, as“the color element” favoured an “attitude of almost lawless, brutal, indiscriminate and ultra-swift punishment” and lacked the advocacy of an influential Japanese-American constituency (who, he neglected to say, waslocked away in internment camps).34 Glueck had much more to say on
penological practices, which I discuss in part elsewhere.35 Here I merely
wish to draw attention to specific audiences of the Allied war crimes programme as discursive legal spaces of consequence for the broader social
history of the programme, not least during the post-trial clemency phase,when advocacy groups worked transnationally to effect, or protest, theearly release of the convicted.
17.3. Sorting Out Suspected War Criminals
While government officials, parliamentarians, lawyers and academics debated their visions of punishment for war criminals in London, in Chongqing (seat of the Far Eastern Commission of the UNWCC), Canberra andWashington – the hubs of war crimes policy – the Allied victorious armies
had to deal with people on the ground. Their job was to sort out suspected
war criminals from Axis military and civilian leaders, surrendered soldiers,
POWs, and civilian or collaborator populations across Europe, across Asia,and in POW camps scattered across the United States, Australia, New
Zealand, Northern Africa, and Siberia. The legal reckoning with war
crimes was rooted in the geographical rescaling of territoriality throughprocesses of military conquest, liberation, occupation, re-colonization,
decolonization and nationalization.36
This remapping of territorial sovereignty entailed not just the assumption of military control over a certain area by the victors in war, butmore importantly the sorting and reordering of groups of people, whose
sense of place and position to each other shifted in the process, voluntarily
or involuntarily. The Allies’ gargantuan repatriation efforts across the
Asia-Pacific region, within Europe, and across the Atlantic was the over34
35
36

Ibid., p. 12.
See Seraphim, 2016, see above note 31.
For a map of territorial jurisdictions in Asia, see Wilson et al., 2017, p. 33, see above note
5; an excellent overview of the complex situation in Asia after the collapse of the Japanese
empire is Ronald H. Spector, “After Hiroshima: Allied Military Occupations and the Fateof Japan’s Empire, 1945–1947”, in The Journal of Military History, September 2005, vol.
69, no. 4, pp. 1121–36.

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whelming humanitarian imperative and logistical challenge with which
the apprehension of war crimes suspects was intimately bound up. Victims and perpetrators were not always easy to distinguish simply by national, ethnic or military group affiliation. The uncovering of crimes,
moreover, demanded the furnishing of evidence from victims and perpetrators alike. Equally important was the high degree of human mobility
that characterized the post-war years as wartime camps were emptied ofsome and refilled with others, Japanese were repatriated only to be returned to stand trial near the site of their crimes, and surveillance regimes
stretched from local to global (in the form of the ICRC, for example).37
Even though the vectors of territoriality and mobility pointed in different
directions after Imperial Japan’s and Nazi Germany’s defeat compared tobefore, the spatial dynamics as such persisted.
The situation in Europe was very different from the one in Asia.
The vast majority of German soldiers surrendered on German soil to oneof the four occupying powers in their respective jurisdictions, who bythen had given up on an inter-Allied co-ordinated occupation policy.38 Instead, mass internment of Germans – both military and civilian, seen principally as potential security risks and only secondarily as war crimes suspects – followed national policies although there was extensive cooperation on extraditions among the four powers in the first years. The
Americans had a policy of ‘automatic arrest’ in place, the most comprehensive of all four, covering anyone in public office and war industries,
utilizing decommissioned concentration camps and makeshift mass detention camps (for example, the Rheinwiesenlager). The British and theFrench arrested far fewer. The Soviets had no policy in place, which resulted in mass deportations of captured soldiers and civilians first to special camps in the Baltics, Silesia and Pomerania and from there to labour
camps in the Soviet Union. Finally, in March 1946, a Soviet version of theAmerican policy for capturing suspected war criminals was put in place.
The policy focused on people engaged in espionage, anti-Soviet intelligence, resistance to the Red Army, illegal munitions operations, and to a
37

38

For a graphic that illustrates war criminals’ multiple transfers in the Dutch jurisdiction
alone, see Wilson et al., 2017, p. 52, see above note 5.
Wolfgang Form, “Alliierte Kriegsverbrecherprozesse nach dem zweiten Weltkrieg in Europa”, in Kerstin von Lingen (ed.), Kriegserfahrung und nationale Identität in Europa
nach 1945: Erinnerung, Säuberungsprozesse und nationales Gedächtnis, Ferdinand Schöningh, Paderborn, 2009, pp. 52–73.

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much lesser extent members of the Nazi Party and Nazi ‘terror organizations’ down to magazine editors. The arrest rate was a little lower thanthat of the Americans.39 But the experience of mass internment had been
so challenging that the Western Allies opted for a somewhat reverse policy in Asia: repatriate first, ask war crimes questions later.
In August 1945, six and a half million Japanese military and civilian
personnel, including many ethnic Koreans and Taiwanese who had beenpart of the Greater East Asia project as colonial subjects, were stranded
across North and Southeast Asia and the Pacific, variably and over timeclassified as civilian internees, POWs, Surrendered Enemy Personnel(‘SEP’ – a British-only designation allowing, before 1 March 1947, fortheir use as forced labour), War Crimes Suspects, War Criminals, andCleared War Criminals.40 Whereas highly ranked officers attending surrender ceremonies were marched straight to high-security prisons, andgovernment leaders ordered to report to Tokyo’s Sugamo Prison, the overall goal was to ship as many soldiers as possible back to Japan before
screening for war criminals and arresting repatriated suspects from among
their home communities. Still, lower-ranked war crimes suspects werearrested in the very same notorious camps the Japanese military (andsometimes they personally) had run for Allied POWs and civilian internees during the war, and where an estimated third of the crimes later on
trial had been committed.41 In Thailand, for example, Japanese SEPs were
held at one of the most notorious POW camps they themselves had run
during the war while they worked to keep the Siam-Burma Railway going.
In Singapore and Jakarta, they were seen all over town repairing its infrastructure as “surrendered Japanese personnel”.42 But many former imperi39

40

41

42

Lutz Niethammer, “Alliierte Internierungslager in Deutschland Nach 1945: Ein Vergleich
und offene Fragen”, in Alexander von Plato (ed.), Sowjetische Speziallager in Deutschland,
1945 bis 1950, Akademie, 1998, pp. 97–116.
Stephen Connor, “Side-Stepping Geneva: Japanese Troops under British Control, 1945–7”,
in Journal of Contemporary History, 2010, vol. 45, no. 2, pp. 389–405.
Reports of General MacArthur, vol. 1, chap. 14, p. 465 (available on the US Army’s website). According to Japanese Justice Ministry statistics, the overwhelming majority ofcrimes prosecuted were murder/ill-treatment of civilians (4,389) closely followed by thoseagainst POWs and internees (3,581) out of a total of 9,228 crimes (not defendants or cases).
Yoshio Chaen, BC-kyū senpan: Oranda saiban shiryō, zenkan tsūran [Class B/C War
Criminals: Complete Available Documents on the Dutch Trials], Fuji, 1992, pp. 268–269.
Ronald Spector, In the Ruins of Empire: The Japanese Surrender and the Battle for Postwar Asia, Random House, New York, 2008, p. 85; ICRC prison reports, RG 7, International Red Cross Archives, Geneva.

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al soldiers made themselves invisible by joining new local wars, in Burma,
Malaya, Indonesia and especially China. In addition, Japanese civilians
were desperately needed to run industry and infrastructure, as in Korea
and Taiwan.43
Sorting out war criminals from collaborators was a protracted process in all Axis-occupied areas and at all stages of the war crimes programme. This had to do with the nature of wartime occupation but evenmore so with post-war political objectives – recovering previously intact
national sovereignties in Western and Northern European countries wasdifferent from establishing new regimes in Eastern Europe, in the courseof which collaborators and Nazi war criminals became hopelessly entangled. But nowhere was this as intense as in countries trying to establish
national legitimacy as post-colonial sovereign States for the first time, thatis, declaring independence from both the Japanese and Western colonial
powers, as in Indonesia, French Indochina, Burma, the Philippines, anddifferently yet again in China and Taiwan.44
Here, the question of territorially-based identity became particularly
vexed. As the Dutch colonial authorities sought to reclaim their positionsof authority in immediate post-war Indonesia, hunting down collaboratorswith the Japanese among indigenous populations assumed priority oversecuring Japanese war criminals.45 In the Philippines, war crimes and traitor trials became complexly entangled once the Americans turned such
legal reckoning over to the newly independent authorities.46 Questions of
43

44

45

46

For an excellent overview of the immense challenges with which the war crimes programme had to wrestle, see Robert Cribb, “How Finished Business Became Unfinished:
Legal, Moral and Political Dimensions of the Class ‘B’ and ‘C’ War Crimes Trials in Asiaand the Pacific”, in Christina Twomey and Earnest Koh (eds.), The Pacific War: Aftermaths, Remembrance, and Culture, Routledge, 2015, pp. 92-109.
The nexus of war crimes trials and the pursuit of collaborators in the context of colonialism and decolonization in Asia is addressed through a number of case studies in Kerstin
von Lingen (ed.), Debating Collaboration and Complicity in War Crimes Trials in Asia,
1945-1956, Palgrave Macmillan, New York, 2017.
Robert Cribb, “Avoiding Clemency: The Trial and Transfer of Japanese War Criminals inIndonesia, 1946-1949”, in Japanese Studies, September 2011, vol. 31, no. 2, pp. 153–54.
Konrad Lawson, “Universal Crime, Particular Punishment: Trying the Atrocities of theJapanese Occupation as Treason in the Philippines, 1947-1953”, in Comparativ: Zeitschrift
für Globalgeschichte und vergleichende Gesellschaftsforschung, 2013, vol. 23, no. 3, pp.
57–77. See also Wolfgang Form, “Colonization and Postcolonial Justice: US and Philippine War Crimes Trials in Manila After the Second World War”, in von Lingen (ed.), 2016,
pp. 143–66, see above note 18.

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ethnic identity loomed especially large in Chinese nationalist war crimes
trials on Taiwan involving legally Japanese but ethnically TaiwaneseClass B/C war criminals. Whereas the Western Allies convicted Taiwanese and Korean guards as Japanese war criminals, irrespective of their colonial status during the war,47 the Chinese Nationalists, eager to “assert
their authority over all Chinese”, did have to sort out the ethno-political
identity of the accused to determine legal prosecution and to set themapart from local collaborators.48 Even though much of the rhetoric wasabout unmaking the violent order forged in the previous decade, it was nota simple return to a status quo ante but one that reflected new hierarchies
and power relationships within specific spatial contexts.
From a legal perspective, what mattered most for the treatment ofsuspected, accused or convicted war criminals was defining their rights inrelation to those of courts martials, POWs or common criminals, a discussion that ran parallel to the dominant debates on what constituted a war
crime. This concerned the extension of the 1929 Geneva Convention(which provided for the safeguarding of POWs) to enemy war criminals,
both military and civilian. There was no clarity. Well before the end of
hostilities, the United Nations Commission for the Investigation of War
Crimes took up the question: “May the conventional protection of a prisoner of war, respecting imprisonment and punishment, be denied a prisoner of war who is charged by a responsible accuser as a war criminal?”.49
The problem was that of the 10 articles of the 1929 Geneva Convention that dealt with the safeguarding of POWs while being subjected to
judicial criminal proceedings, none considered the punishment of POWs
for crimes committed before their capture. In the absence of a clear definition of the treatment of war criminals in international law, the US Theater
Judge Advocate of the European Theater of Operations was initially prepared to grant war criminals the protection enjoyed by POWs. In a memorandum of 15 July 1944, however, Army post-war planners laid down
their interpretation that:

47

48

49

Among the 5,677 indicted of Class B/C war crimes, 173 were Taiwanese and 148 Korean,in which 21 and 23 were executed respectively. Aiko Utsumi, Kimu wa naze sabakareta
no ka [Why Was Kim Prosecuted?], Asahi Shinbunsha, Osaka, 2008, p. 7.
Barak Kushner, “Pawns of Empire: Postwar Taiwan, Japan and the Dilemma of War
Crimes”, in Japanese Studies, 1 May 2010, vol. 30, no. 1, p. 113.
For a related discussion of this issue, see Seraphim, 2016, pp. 189, see above note 31.

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As a strict matter of law persons so charged with crime are
not entitled to the rights of a prisoner of war, but as a matterof policy for those to be tried only at the end of the war it isbelieved that they should be given practically all the rights
available to ordinary prisoners of war except for close surveillance and other measures necessary for assuring theiravailability for the trial.50

American war crimes policy makers wanted to have it both ways.
According to this document, they appeared unrelenting in denying accused war criminals the rights of POWs in court but were willing to begenerous when it came to the conditions of imprisonment, especially pretrial detention. The controversy focused on Article 63 of the 1929 Geneva
Convention,51 which established that POWs were to be tried in the same
courts and by the same rules as applied to courts-martials of the capturing
nation.52 The defence of the Japanese General Tomoyuki Yamashita took
this all the way to the Supreme Court in the fall of 1945, which rejected iton the grounds that Article 63 applied only to crimes committed while incustody as POW, not before capture.53 The ICRC, meanwhile, insisted on
the need to guarantee war criminals a minimum of protection under international law, which was anchored in the Articles 47-67 of the Geneva
Convention54 and could thereby be applied to Axis war criminals. As it
turned out, this viewpoint eventually won enough common ground among
the Western Allies in 1948 (and in opposition to the Soviets) that at thethird Geneva Convention in 1949, the granting of POW privileges, wasindeed extended to convicted war criminals in Article 85.55
50

51

52

53

54
55

Memo by Colonel Archibald King, Chief of War Plans Division, Headquarters Army Service Forces, to The Judge Advocate General, 15 July 1944, NARA, RG 153, Entry 145,
Box 16, p. 3 (italics added).
Convention relative to the Treatment of Prisoners of War, 1929, Article 63 (https://www.
legal-tools.org/doc/1d2cfc/): “A sentence shall only be pronounced on a prisoner of war by
the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power”.
For an in-depth study of this issue, see Günter Winands, Der Status des Kriegsverbrechers
nach der Gefangennahme: eine völkerrechtliche Untersuchung, Bock & Herchen, 1980,
especially pp. 20–21.
Allan A. Ryan, Yamashita’s Ghost: War Crimes, MacArthur’s Justice, and Command
Accountability, University of Kansas Press, 2012, p. 285.
See above note 51.
Convention (III) relative to the treatment of prisoners of war, 1949, Article 85 (https://www.legal-tools.org/doc/365095/): “Prisoners of war prosecuted under the laws of the De-

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17.4. Carceral Systems
As suspects were apprehended in all corners of the former war theatres,
they were housed in existing camps and prisons, often the same places ofwhich the accused had been in charge only a short while earlier and where
many of the crimes had occurred. Suspected Japanese war criminals,
many of whom had already been repatriated, were apprehended in theirhometowns, put back on ships and transported to the places where one ofthe prosecuting powers requested that they stand trial anywhere in Japan’s
former empire. The trials-related traffic across the seas of the now defunctfar-flung empire and especially the Allied military hubs in Tokyo, Manila,
Hong Kong, Shanghai and Singapore included not only the accused but
also their legal teams, translators and staff. European, American and Australian prosecutors shared human and material resources as well as courtrooms and jails, in particular in Singapore and Hong Kong.56 The experience of multiple national justice systems and incarcerations made a lasting
impression on the prisoners themselves, who began to see themselves aspawns of the shifting power politics of the time. This is corroborated in
the prison diaries and memoirs of famous generals such as Saburō Kawamura and Hitoshi Imamura.57 More alluringly, some visualized their environs in drawings, maps and cartoons. Incarceration engenders a heightened sense of place, simply because space is restricted, but in this case,the carceral geography of the Allied war crimes programme was literally
mapped onto the changing territorial geography of Japan’s former empire.58 From the perspective of both the criminals documenting their experiences and the Japanese government mapping out the war crimes programme in document collections after the programme was over, it is evident that the Allies ran a network of prisons and camps for the incarcera-

56
57

58

taining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention”. Quoted, with historical background, in Francois Bugnion
and International Committee of the Red Cross, The International Committee of the Red
Cross and the Protection of War Victims, Macmillan Education, Oxford, 2003, pp. 617-18.
Also, see Winands, 1980, pp. 24–25, see above note 52.
See Wilson et al., 2017, p. 52, above note 5.
Kei Ushimura, Beyond the “Judgment of Civilization”: The Intellectual Legacy of theJapanese War Crimes Trials, 1946-1949, International House Japan, 2003, Part III.
For a discussion of the visual record, see Franziska Seraphim, “Carceral Geographies ofJapan’s Vanishing Empire: War Criminals’ Prisons in Asia”, in Barak Kushner and Sherzod Muminov (eds.), The Dismantling of Japan’s Empire in East Asia: Deimperialization,
Postwar Legitimation, and Imperial Afterlife, Routledge, 2017, pp. 125–45.

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17. Spaces of Punishmenttion of convicted Japanese war criminals that can be characterized andanalysed as a ‘carceral system’.59
From a global perspective, it is well worth recognizing the patterns
held in common and contrast among the Allies in the distributional geography of places of punishment. All main prisons used to incarcerate (convicted) war criminals across Asia were of colonial origin and had been
built in the preceding half-century to discipline and contain local ethnic
resistance to colonial and imperial rule: the British prisons in Singapore,
Hong Kong, and Rangoon (now Yangon); the American prison in
Muntinlupa, a suburb of Manila; the Dutch prison in Jakarta (formerly
Batavia), but also the Japanese prisons Sugamo in Tokyo and Fushun in
Manchuria. Each reflected the colonial history of its specific region. The
British colonial government in Singapore operated two prisons, the older
Outram Road Prison, built in 1847 by British professionals, and the newer,
majestic, state-of-the-art Changi Gaol, opened in 1936 (and demolished in2000) and considered to be “one of the most modern and best-equipped
military bases in the world” in the words of Royal Artillery Squadron
Leader H.A. Probert.60
A very different carceral network was operating all across the Soviet Union for a majority of Germans, both military and civilian (about 2.5
million), Japanese (640,000), various Eastern Europeans and Italians, aswell as Soviet POWs criminalized by having been detained in Nazi
camps.61 The staggering extent of this network, both numerically and geographically, reflects a dual mapping of war criminality onto post-war
criminality as anti-Soviet resistance on the one hand (affecting mainly
Germans and East Europeans), and of imprisonment for war crimes onto
the existing and expanding GULAG labour camp system (affecting Japanese) on the other. Disentangling this is very difficult, which is why the
59

60

61

Yoshio Chaen, Nihon BC-kyū senpan shiryō [Documents of the Japanese Class B/C War
Criminals], Fuji, Tokyo, 1983; Yoshio Chaen, Zusetsu sensō saiban Sugamo Purizun jiten[An Illustrated Encyclopedia of Sugamo Prison], Nihon Tosho Sentā, Tokyo, 1994. See also Wilson et al., 2017, pp. 106–15, see above note 5.
Cited in Robert Havers, “The Changi POW Camp and the Burma-Thailand Railway”, inPhilip Towle, Margaret Kosuge, and Koichi Kibata (eds.), Japanese Prisoners of War,
Hambleton and London, 2000, pp. 20–21.
Valerij Vartanov, “Kriegsgefangenschaft in der Sowjetunion”, in Günter Bischof, Stefan
Karner, and Barbara Stelzl-Marx (eds.), Kriegsgefangene des zweiten Weltkrieges: Gefangennahme, Lagerleben, Rückkehr, Kriegsfolgen-Forschung Bd. 4, Oldenbourg, 2005, pp.
89–99.

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Soviet and Eastern European trials are usually taken out of the ‘Allied’
war crimes programme, but it is part of the broader spatial politics of imprisonment that played off of each other at the time. In Asia, the Soviets
conducted but one formal trial in Khabarovsk, convicting 12, yet dispersed hundreds of thousands of Japanese captives across the GULAG
system of Eurasia.62 Ichirō Takasugi, the author of one of the most important memoirs of Soviet internment,63 wrote eloquently about the confusing disconnect between what would have been an appropriate place ofhis personal punishment, namely where he had engaged in aggression in
China, and the Siberian camps in which he found himself. This was the“paradox of the Siberian internment” in Andrew Barshay’s insightful
reading of Takasugi’s text.64 Such lack of institutional connection between
wartime criminality and Soviet internment policy was echoed in Germany
as well.65
No comparable prison network developed in Europe. Following
UNWCC advice, penal policy was left to the individual prosecuting States.
Aside from the seven Nazi leaders sentenced to prison terms by the IMT
in Nuremberg and incarcerated in Spandau Prison, the only prison jointly
run by the four occupying powers in Berlin, the war crimes programme
quickly nationalized: the French, the Dutch, the Belgians, the Danes, theNorwegians, the Poles, the Czechs, the Greeks, the Yugoslavs and the Italians all used their own national legal systems and civilian prisons usuallyin or near urban areas. Unlike in Asia, where Japanese convicted outside
Japan were eventually repatriated and transferred to Sugamo amidst multiple collapsing imperialisms, Germans convicted outside Germany served
out their sentences as part of those countries’ national rebuilding.
But most eyes were on occupied Germany, where the Americans,the Brits, the French, and the Soviets in their respective occupation zones
took over local courtrooms in just about every larger city of Germany,
staffed them with their own military personnel, and designated one prison
62

63

64

65

Valentyna Polunina, “From Tokyo to Khabarovsk: Soviet War Crimes Trials in Asia as
Cold War Battlefield”, in von Lingen (ed.), 2016, pp. 239–60, see above note 18.
Ichirō Takasugi, Kyokkō no kage ni: Shiberia furyoki [In the Shadow of the Northern
Lights: A Memoir of Imprisonment in Siberia], Meguro Shoten, 1950, Iwanami Bunko,
Tokyo, 1991.
Andrew E. Barshay, The Gods Left First: Imperial Collapse and the Repatriation of Japanese in Northeast Asia, 1945–1956, University of California Press, Berkeley, 2013, p. 94.
Niethammer, 1998, p. 9, see above note 39.

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17. Spaces of Punishment

in each Western zone to house the war criminals they prosecuted: theAmericans, in Landsberg am Lech, a small town in Bavaria; the Brits, in
Werl; and the French, in Wittlich, a former women’s prison. This carceralsystem was less marked by transfers of prisoners or staff between theseprisons, although they occasionally occurred, than by an implicit, at times
even explicit, alignment of carceral policies and practices among the threeWestern Allies, who watched and conferred with each other regularly.
Certainly, after the consolidation of the three Western zones and thefounding of the Federal Republic, the Americans, the Brits, and theFrench were highly aware of public scrutiny of discrepancies between
carceral policies, which could be – and were – exploited by Germans
pushing back against the war crimes programme. The Soviets set up socalled special camps (Spezlager) that housed, often on a transitory basis,
convicted war criminals along with all other categories of criminals. A
particular type of punishment in these camps was not hard labour but the
opposite: the complete neglect of the prisoners.66 The larger point is thatthe distributive geography of imprisonment had a relational quality, cooperatively or in conflict with other powers, and it is precisely the inconsistencies thereby created that could and was politically used, if not exploited, by various sides and for various audiences.
The contemporary public would hardly have appreciated the distributive geography of the war crimes programme on a global scale. Instead, individual prisons commanded public attention at the time and all
the more so after the trials, as part of local communities who serviced
them, as part of national politics that used them as symbolic and rhetorical
touchstones, and as part of a transnational measuring stick of the longerterm effect of the war crimes programme. What went on inside the highwalls filtered through in selective and compromised ways, occasionallysurfacing in tabloids, in lawyers’ affidavits in clemency petitions and political advocacy, and later in published memoirs.
Perhaps unsurprisingly, it was Spandau Prison in divided Berlin that
achieved iconic status, mainly as a unique and bizarre space of continued
Allied co-operation across Cold War lines long after all other co-operation
among them had ceased. Indeed, Spandau continued to exist not as part of,but despite, the war crimes programme, frozen in time by an uncompromising hostility that prevented it from evolving with the programme. Built
66

Ibid.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

to a capacity of 600, it only ever housed seven Nazi leaders after 1945,
convicted by the IMT in Nuremberg, without recourse to a review process
or revisions of sentences. Five of them were released in the 1950s, one in
the 1960s, and the last war criminal, Rudolf Hess, was in single occupancy until 1987, when he managed to hang himself at age 93, just three
years before the Berlin Wall fell. Throughout these decades, the four Allied powers of World War II took monthly turns at running the prison andsupplying guards, principally concerned with spying on each other rather
than guarding the old Nazis.67 It is tempting to see in this a metaphor forthe entire war crimes programme as a child of the Cold War. However,Spandau was in fact an exception, not the rule: precisely because it was
jointly run by the Allies, they prevented each other from adjusting theircarceral policies, in great contrast to any of the other prisons.68
With the end of most trials in the late 1940s and the United States
taking the lead in winding down the war crimes programme through reviews and a clemency programme, the two American-run war criminals’
prisons in Landsberg and Sugamo became synonyms for the Allied war
crimes programme as a whole in the contemporary media as well as ingovernmental politics. This was certainly not apparent in the spring of1946, when these locales were the subject of ongoing debates among theoffices of the Provost Marshall, the Judge Advocate General, the Directorof Legal Division, and Prison Director in the US occupation zone in Germany and the US Army Forces in the Pacific, respectively, as well as in
the War Crimes Office in Washington.69 More so than the legal process ofthe trials, which had limited transparency for most of the time, the longterm execution of sentences was grounded in everyday administrative
practicalities that made not only the meaning of justice but also that ofdemocratic rebuilding concrete for different participants and audiences,including the German, Japanese and American publics, as well as themany different victims of war atrocities.
67

Norman J.W. Goda, Tales from Spandau: Nazi Criminals and the Cold War, Cambridge
University Press, 2007, pp. 1–18.
68
Another exception was the ‘Breda Four’, the only German war criminals ever imprisonedin the Netherlands, in Breda Prison, two of them until 1989, and widely seen as tokens of a
Dutch war crimes programme that never materialized. Dick de Mildt and Joggli Meihuizen,“‘Unser Land muss tief gesunken sein...’: Die Aburteilung deutscher Kriegsverbrecher in
den Niederlanden”, in Norbert Frei (ed.), 2006, pp. 316–325, see above note 8.
69 RG 153, Entry 145, Box 16, folder “Imprisonment of Japanese and German War Criminals,
1946-49”, NARA II, College Park.

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17. Spaces of Punishment

In requisitioning the two prisons in Sugamo and Landsberg, the US
military not only found facilities with reasonably intact structures, a reasonable capacity (at least to begin with), and at a reasonable distance totheir own trial locations. Like the colonial prisons used for Japanese war
criminals all around Asia, the two prisons were also intricately bound up
with the preceding half-century of history, forged in the crucible of nation-state building, imperialism, democracy, militarism and fascism. Bothwere built as part of a global wave of modern prison-building at the turnof the twentieth century, updating and extending Foucault’s eighteenthcentury history into the global imperial age.
Sugamo Prison, originally named Keishichō Kangoku Sugamo Shisho, was built in north-western urban Tokyo in 1895, the beginning of Japan’s formal empire. In the 1920s, it was expanded, renamed ‘Sugamo
Kangoku’, and increasingly housed political prisoners, especially communists arrested under the 1925 Peace Preservation Law. The famous
German spy for the Soviet Union, Richard Sorge and his Japanese recruit
Hotsumi Ozaki, were executed there on 7 November 1944.70 The prison
layout followed the British model of several cell blocks arranged in a row
just like Stanley Prison in Hong Kong, suited to its urban setting, on six
acres of land. Five long wings had three-story tiers of cells; another wing
had a two-story tier; a separate small building, the Blue Prison, housed
women; and yet another separate building was used for executions. Its
capacity of about 2,000 was never reached under Japanese administration,and those who remained at the end of the war were simply released tomake space for the war criminals expected to be arrested in the fall of1945.71
The Gefangenenanstalt Landsberg am Lech was built under Kaiser
Wilhelm between 1904 and 1908 in a semi-rural setting across the riverfrom the town centre between a major road and extensive farmland on anelevated plateau next to the Gut Spötting, where the prisoners worked. It
had a state-of-the-art panopticon layout, in which four cell blocks werearranged in a cross shape with a supervisory area in the centre and a stringof administrative buildings curving around one side behind high walls,
which corresponded to the modern prison code of 1885. Renovations after
70

71

One of the latest books detailing this history is Owen Matthews, An Impeccable Spy: Richard Sorge, Stalin’s Master Agent, Bloomsbury, 2019.
Ibid., p. 2–3.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

World War I were meant to accommodate a different type of incarceration
for a few elite (political) prisoners without labour requirements called
Festungshaft (fortress custody) and Schutzhaft (protective custody). The
first such prisoner was Anton Graf von Arco auf Valley, who assassinatedthe Bavarian prime minister Kurt Eisner in 1919. After the failed Beer
Hall Putsch in Munich in 1923, Adolf Hitler, his deputy Rudolf Hess, aswell as Julius Streicher and Gregor Strasser served sentences there in considerable comfort.72 After 1933, the prison became a major Führer cultpropaganda tool especially among the Hitler Youth, and held increasingly
more Nazi resisters as political prisoners in ordinary custody. By the final
years of the war, it served as the transfer destination of prisoners from allover Germany and Nazi-occupied territory, thereby including several
hundred ‘spies’ and others, especially from Eastern and Southern Europe,bringing the number of inmates to more than three times its originally intended capacity of 500.73
There are obvious trans-war parallels in how the two prisons reflected and participated in their respective political environs. Each had asymbolic meaning that escaped no one. Both were also marked by theirclose geographical proximity to sites of crimes being adjudicated, POW
camps in the case of Sugamo, and the Dachau death camp network in thecase of Landsberg. The 1,409 Class B/C Japanese war criminals prosecuted by the Eighth Army of the US and awaiting trial or serving sentencesin Sugamo were accused of maltreatment of American POWs in one of
the many POW camps in Japan.74 The most notorious of those camps, theŌmori stockade on an island in Tokyo Bay, served as a place of detention
for suspected war criminals before they began to be transferred to Sugamo
Prison in November 1945. The new custodians of Ōmori marked the transition by making the prisoners clean up the “filth” the Japanese had left,“scrubbing from top to bottom and thoroughly disinfecting the place”.75
72

Dagmar Dietrich, Landsberg Am Lech: Vorstadtbereiche und eingemeindete Dörfer, vol. 4,
Deutscher Kunstverlag, 1999, p. 200.
73
Thomas Raithel, Die Strafanstalt Landsberg am Lech und der Spöttinger Friedhof 19441958, Institut für Zeitgeschichte, 2009, pp. 40–44.
74 A succinct summary of the number of Japanese defendants and trials by prosecuting authority is available in Wilson et al., 2017, pp. 77–78, see above note 5.
75 See Margherita Straehler, “Confidential report to the International Red Cross Society”, 8
February 1946, on several visits to Ōmori and Sugamo between September 1945 and February 1946. RG 7 on Japanese war criminals, International Red Cross Archives, Geneva.

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17. Spaces of Punishment

Most of the 1,672 German war criminals indicted by American military courts were first held at Dachau before and during their trials, before
being transferred to Landsberg Prison about an hour west of Dachau toserve their sentences. 76 Adjacent to Landsberg, several Dachau satellite
concentration camps, Kaufering I–IV, had served as forced labour camps
for the nearby munitions industry, which was put underground in the lastyears of the war with the help of prisoners transported there from Auschwitz and other camps; for thousands, they became death camps.77 After its
liberation in April 1945 by American troops, Kaufering IV was reconfigured as a regional displaced persons camp for Holocaust survivors andforeign forced labour. In stark contrast to Tokyo, victims and perpetratorsof mass atrocities occupied the area around the small town of Landsberg
in close proximity to each other. This exploded into violent confrontation
when the townspeople staged a large demonstration against the last US
execution of war criminals on the Landsberg town square on 7 January
1951, and a group of Jewish displaced persons living in the area staged acounter-demonstration.78
The presence of war criminals – whether suspected, on trial, or convicted – introduced a complexity into the social fabric of local communities that the American occupiers knew they had to manage. In a detailed
survey of all the conceivable possibilities for holding former Axis war
criminals – in Germany and Japan, on a US-administered island in the
Pacific or the Atlantic, in the US federal prison system, or in other Alliedcountries – these prisons were correctly foreseen as a constant source of
irritation on both policy and psychological levels, and not only if they
were located in Japan and Germany. It was feared, for example, that thesafety of Axis war criminals from violence by fellow criminals could not
be guaranteed were they imprisoned in the already overcrowded American
76

77

78

Statistics in Frei (ed.), 2006, p. 31, see above note 8. On Dachau as an internment camp,see Harold Marcuse, Legacies of Dachau: The Uses and Abuses of a Concentration Camp,
1933–2001, Cambridge University Press, 2001, pp. 88–94.
Edith Raim, ““Unternehmen Ringeltaube”: Dachaus Aussenlagerkomplex Kaufering”, in
Wolfgang Benz and Barbara Distel (eds.), Die vergessenen Lager, Dachauer Hefte, vol. 5,
DTV, Munich, 1994.
Michael Strasas, “Die Sprache des Herzens sprechen lassen”, in Manfred Deiler, Anton
Posset, and Michael Strasas (eds.), Von Hitlers Festungshaft zum KriegsverbrecherGefängnis No. 1: Die Landsberger Haftanstalt im Spiegel der Geschichte, Themenhefte
Landsberger Zeitgeschichte: Landsberg Im 20. Jahrhundert, Heft 1, Drucklagen Augsburg,
1993, pp. 13–19.

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The Tokyo Tribunal: Perspectives on Law, History and Memoryfederal prison system.79 In the end, the most practical solution was to keep
American-convicted war criminals in Sugamo and Landsberg, and deal
with the ‘irritation’ this was likely to cause on an ad hoc basis.
American penal practices in Landsberg and Sugamo shared many
commonalities and in fact recalled to a large extent Sheldon Glueck’s vision of a two-phase penologic programme. The prisons were sites inwhich the evolving relationship between captors and captives, victors andthe vanquished, occupiers and the occupied played out with rare intensity.
Indeed, John Dower’s characterization of the US occupation of Japan as
an extraordinarily “electric” cross-cultural moment whose “focused intensity” had no match in Germany is clearly observable in the dynamics thatprevailed in Sugamo.80 There are political, cultural and psychological reasons for this, at the centre of which lay a form of orientalist racism carriedover from the war and reproduced in the exclusiveness of the American
occupation. One administrative difference of consequence, however, wasthe decision to keep the American staff of Landsberg to an absolute minimum by hiring Poles as guards, whereas the Supreme Commander for the
Allied Powers ran Sugamo almost exclusively with Eighth Army GIs,
apart from the help of Japanese cooks and janitors.81 In Landsberg, theAmericans remained distant authority figures, relying almost exclusively
on local resources in supplying and servicing the prison and on the German prison chaplains as mediators (or self-appointed advocates) for theprisoners’ requests.82
Paying attention to the physical spatiality of the war crimes programme can open up a much wider range of legalities than those pertaining to the criminal law of trials. Such an inquiry captures the social mean79

80

81
82

Memorandum by Bertram W. Tremayne, Jr., “Observations on the place of confinement of
war criminals sentenced to terms of imprisonment”, 17 April 1946, Judge Advocate General’s Office, Plans and Policy Section, War Crimes Branch, RG 153, Entry 145, Box 16“Imprisonment of German and Japanese war criminals, 1946-49”, NARA II, College Park.
John Dower, Embracing Defeat: Japan in the Wake of World War II, W.W. Norton & Co.,New York, 1999, p. 23.
Raithel, 2009, p. 51, see above note 73.
Insofar as the prisons have been studied academically, works have tended to focus on thechaplains. Key studies are Katharina von Kellenbach, The Mark of Cain: Guilt and Denialin the Post-War Lives of Nazi Perpetrators, Oxford University Press, 2013, and Hirotada
Kobayashi, Sugamo Purizun: Kyōkaishi Hanayama Shinshō to shikei senpan no kiroku[Sugamo Prison: A Record of Chaplain Shinshō Hanayama and the War Criminals on
Death Row], Chūō Kōron-sha, 1999.

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17. Spaces of Punishmentings contingent on concrete places; it can do so through a serious analysisof both the space inside the prisons themselves as well as their place within local, national and even transnational communities. The historical record here is so rich, so understudied and undertheorized, and the memory
so remarkably uneven in post-war Japan and Germany that it deserves a
study of its own beyond the limits of this chapter.83 Official records of thetwelve-year US military administration of Landsberg Prison are scatteredamong different archives and personal holdings, whereas much documentation of Sugamo as a prison for war criminals has been collected andeven reprinted in multiple volumes.84 Published memoirs by Landsberg
war criminals themselves appear to add little to German scholarship beyond proof that the worst offenders unequivocally denied their personalguilt. Sugamo prisoners published more prolifically and in diverse genresfrom inside the prison and after their release, documenting life there in
great detail through manga, drawings, maps as well as poems and nonfiction writing.85 It directs attention to the relational spatialities of imprisonment as they were experienced and remembered both by captives andtheir captors as part and parcel of the war crimes programme as a whole.
Prison life also functioned as the pivot between the international
politics of justice and the domestic politics of rehabilitation as places ofpunishment became centre points in the clemency and release programmethat eventually brought the war crimes programme to an end in 1958 inboth Asia and Europe. Such a reading makes clear just how difficult it was
to situate punishment for war crimes within familiar legal regimes, andhow usable that difficulty was to those who would challenge justice byforeign powers – with implications for current efforts at transitional jus83

84

85

For a short comparative study, see Seraphim, 2016, see above note 31. For an overview ofLandsberg Prison, see Raithel, 2009, pp. 50–65, above note 73; on Sugamo, see John L.
Ginn, Sugamo Prison, Tokyo: An Account of the Trial and Sentencing of Japanese War
Criminals in 1948 by a U.S. Participant, McFarland & Co., 1992, pp. 1–14; in Japanese,see Aiko Utsumi, Sugamo Purizun: Senpantachi no heiwa undō [Sugamo Prison: The War
Criminals’ Peace Movement], Yoshikawa Kōbunkan, 2004.
Key sources include Yoshio Chaen, Nihon senryu: Sugamo Purizun shiryō [Japan’s Occupation: Documents of the Sugamo Prison], 1992, vols. 1–3 and Chaen, 1994, see above
note 59.
For example: Kiyohei Nakayama, Sugamo Purizun 2000 nichi [2000 days in Sugamo Prison], Gendaishi Shuppankai, 1982; Fumio Fujiki, Sugamo densetsu: Manga de tsuzuru
Sugamo Purizun to GI [Legends from Sugamo: Sugamo Prison and the GIs as Seen
Through Manga], Ribā, 1994; Tokio Tobita, C-kyū senpan ga suketchishita Sugamo Purizun [Sugamo Prison Sketched by a Class C War Criminal], Sōshisha, 2011.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

tice. Tellingly, the public media in both countries had all but jettisoned theterm ‘war criminal’ by the early 1950s and either put it in quotes or replaced it with ‘war convicted’ (sensō jukeisha or its German equivalent
Kriegsverurteilte).86 Surprisingly, the war criminals themselves had muchagency in this. The prisons became platforms for political activism bythose inside as well as politicians and supporters outside. Widows of someof the executed, lawyers for those in prison, and released war criminals or
suspects became important spokespersons for the release movement mobilizing local networks to influence parliamentary action, as Sandra Wilson
details in her contribution to this volume.87
In conclusion, taking the dynamics of punishment through incarceration seriously draws attention to different temporalities, legalities andspatialities than what are typically associated with the war crimes trials
centred on the courtrooms in Nuremberg and Tokyo. This chapter focusedon three legal spaces – discursive, procedural and physical – in which thecontradictory dynamics of mass punishment for individual crimes produced legal relationships responsive to different geopolitical concerns.
Juridical, legislative and policy-making assemblies, speaking from various positions of outrage over Nazi German and Imperial Japanese aggression, debated what kind of punishment to mete out to enemy war criminals before the war had even ended. The procedural challenges of apprehension and sorting of suspected war criminals on a massive scale reflected the vastly different circumstances in Europe after Nazi Germany’s collapse and across Asia after Imperial Japan’s surrender. Imprisonment of
the perpetrators far outlasted the trials, military occupation, China’s civil
war, and much of the world’s reconstruction along Cold War lines.
The diversity of the transnational carceral systems and the commitment at least on the part of the Americans to make their engagement inGermany and Japan coherent, speaks loudly to the geopolitical possibilities and ambitions that this quest for justice afforded the victors in war.
But the complexity of individual prisons like Sugamo and Landsberg as
particular physical and social spaces of justice – relationally experienced – and their embeddedness in their respective local communities, inturn, afforded Germans and Japanese possibilities, not only to contest, but
86
87

Brochhagen, 1994, p. 20, see above note 2.
Sandra Wilson, “Clemency for War Criminals Convicted in the Tokyo Trial”, chap. 16
above.

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17. Spaces of Punishment

more importantly to reframe the intentions of the victors in light of theirown immediate needs: regaining sovereign legitimacy, national rehabilitation, and social integration. From this perspective, the post-war comebackof the Sasakawas and the Krupps may prompt a closer look at the social
politics of transitional justice, which significantly qualified the innovations of international criminal law.

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18______The International Criminal Court and theInternational Military Tribunal for the Far East:
Lessons Learnt or Not?
Kuniko Ozaki*
18.1. Introduction
The purpose of this chapter is to look at the influence of the International
Military Tribunal for the Far East (‘IMTFE’) on the establishment and thejurisprudence of the International Criminal Court (‘ICC’ or ‘Court’), or,more specifically, at the lessons learnt from the IMTFE from the perspective of the ICC, including via the two United Nations (‘UN’) ad hoc tribunals, the International Criminal Tribunal for the former Yugoslavia(‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’).
The IMTFE, the International Military Tribunal at Nuremberg (‘Nuremberg IMT’; together, the ‘IMTs’), the ad hoc tribunals, and the ICC all
share the same goal of punishing the perpetrators of the most serious
crimes of concern to the international community as a whole, focusing on
the individual criminal responsibility of political and military leaders.
Crimes under their respective jurisdiction are of a large-scale, systematicand complex nature, and have generally been committed by groups or organizations. The aforementioned features have posed unprecedented challenges in international law as well as procedural and substantive criminal
law. It is in this regard that the two IMTs have been pioneers in the development of international criminal law. The two UN ad hoc tribunals and,*

Kuniko Ozaki is a former Judge at the International Criminal Court (‘ICC’). Prior to joining the ICC, she served as Director for Treaty Affairs for the United Nations Office on
Drugs and Crime and worked in a number of positions for the Japanese government, including as Ambassador and Special Assistant to the Foreign Ministry, Director for Human
Rights and Humanitarian Affairs in the Foreign Ministry, Director for Refugees in the Justice Ministry, and Specialist to the Criminal Affairs Bureau of the Justice Ministry. She
has written extensively on international criminal law, refugee law and law of human rights.
She would like to thank Ms. Raluca Racasan and Ms. Alexandra Grangien for their valuable research assistance. The views expressed in this chapter are her own and do not represent the views of any organization that she belongs to.

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more recently, the ICC, have built upon their legacy while learning fromtheir failures.
18.2. Origins and Jurisdiction of the International Criminal
Tribunals
The starting point for looking at the lessons learnt from the two IMTs is
the legal basis for their establishment and jurisdiction. Both IMTs were
established by the Allied Powers. In particular, the IMTFE was created bya “Special Proclamation” of the Supreme Commander for the Allied Powers (from 19 January 1946), with the Charter of the IMTFE (‘Tokyo Charter’) as an attachment. The proclamation refers to “the terms of surrenderthat stern justice shall be meted out to all war criminals” and to the Japanese acceptance of those terms. Japan also agreed to accept the judgmentsof the IMTFE and other Allied war crimes courts in Article 11 of the San
Francisco Peace Treaty.1 Both IMTs were multinational in the sense that
the Allied Powers had agreed on the relevant applicable laws beforehand,but it cannot be denied that the IMTFE, in particular, also had characteristics of more traditional types of military commissions established by oneof the parties to the international conflict.2 Their jurisdiction was strictly
limited to certain crimes committed by German and Japanese nationals,
respectively.3
In contrast, the two ad hoc tribunals were created by the Security
Council under Chapter VII of the UN Charter.4 Therefore, the two tribunals were de facto subsidiary organs of a political body in charge of
maintenance of peace and security, with a strong enforcement power.
Again, the two tribunals’ temporal, territorial and material jurisdiction
was strictly limited to certain conflicts which the Security Council had a
1

2

3

4

Treaty of Peace with Japan, San Francisco, 8 September 1951 (https://www.legal-tools.org/
doc/3mf4ms/).
R. John Pritchard, “The International Military Tribunal for the Far East and Its Contemporary Resonances”, in Military Law Review, 1995, vol. 149, pp. 27-28; Zachary D. Kaufman, “The Nuremberg v. The Tokyo Tribunal: Designs, Staffs, and Operations”, in John
Marshall Law Review, 2010, vol. 43, p. 757.
Charter of the International Military Tribunal for the Far East, 19 January 1946 (‘Tokyo
Charter’), Article 5 (https://www.legal-tools.org/doc/44f398/); Charter of the International
Military Tribunal, 8 August 1945, Article 6 (https://www.legal-tools.org/doc/64ffdd/).
UN Security Council Resolution 827, S/RES/827 (1993), 25 May 1993 (https://www.legaltools.org/doc/dc079b/); UN Security Council Resolution 955, S/RES/955 (1994), 8 November 1994 (https://www.legal-tools.org/doc/b38d4d/).

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special interest in.5 There have also been so-called ‘mixed’ or ‘hybrid’ tribunals established by specific agreements with countries where serious
crimes had been committed. The purpose of those tribunals is to prosecuteand punish selected individuals or a group of people for specific crimes
committed in those countries by applying a mixture of international andnational laws. The typical example in Asia of such a mixed tribunal is theExtraordinary Chambers in the Courts of Cambodia, which was established by an agreement between Cambodia and the UN for the purpose ofprosecuting and punishing serious crimes committed during the Khmer
Rouge regime (1975-1979).
On the other hand, the ICC is a treaty-based body aiming at being apermanent and universal criminal court. Its founding document, the Rome
Statute, was negotiated and adopted at the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an International
Criminal Court, to which all UN member States were invited.6 The ICC
has thus tried to avoid the criticism brought to its predecessors whichhave been referred to as ‘victors’ justice’ (the IMTs) or courts imposed byan ‘outside body’ (the ad hoc tribunals).7 While this contributed to the legitimacy of the ICC as an independent and impartial court, it was also thecause of a number of the ICC’s potentially fatal weaknesses. Instead of
having powerful countries or an organization such as the UN Security
Council backing it, the ICC lacks enforcement power and is therefore
completely dependent on the co-operation (and thereby on the politicalwill) of the individual member (or non-member) States at all stages of theproceedings.8

5

6

7

8

Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993(‘ICTY Statute’), Articles 1-6, 8 (https://www.legal-tools.org/doc/b4f63b/); Statute of theInternational Criminal Tribunal for Rwanda, 8 November 1994 (‘ICTR Statute’), Articles
1-7 (https://www.legal-tools.org/doc/8732d6/).
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of anInternational Criminal Court, Rome, 15 June-17 July 1998, Official Records, A/
CONF.183/13, vol. II, p. 2 (https://www.legal-tools.org/doc/253396/).
Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial andthe Nuremberg legacy, Routledge, 2008, pp. 60-61; Sarah Finnin and Tim McCormack,“Tokyo’s Continuing Relevance”, in Yuki Tanaka, Tim McCormack, and Gerry Simpson(eds.), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited, Martinus Nijhoff,
Leiden, 2011, p. 355.
Rome Statute of the International Criminal Court, 17 July 1998, Articles 86, 87, 93, 103(‘Rome Statute’) (https://www.legal-tools.org/doc/7b9af9/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

In this respect, it is noteworthy that a significant number of States,
including permanent members of the Security Council, have not yet
joined the Rome Statute. Furthermore, the ratification and accession rates
are particularly low in Asian and Arab countries. This means that the
Court not only lacks jurisdiction over some regions where serious crimes
are or may be committed, but also has little prospects of getting meaningful co-operation from major global or regional powers. Moreover, thenon-participation of countries with rich and distinct legal traditions hampers the legitimacy of the Court, which should represent all major legal
traditions of the world.9
Against this background, the Court has been heavily criticized for
disproportionately targeting the African continent in its investigations andprosecutions.10 This criticism is closely related with the fact that the Court
does not have jurisdiction over many of the other existing conflict situations, in relation to which it also cannot expect to receive co-operationfrom the Security Council.11
Lack of international co-operation from member States during investigation and prosecution also constitutes a significant issue for the ICC,
since the Court has no enforcement power in the territories of these States,
and also does not have any direct power to redress their noncooperation. 12 While in a number of instances, chambers of the Court
9

10

11

12

Robert Cryer, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst, An Introduction
to International Criminal Law and Procedure, third edition, Cambridge University Press,
2014, pp. 173-76 (fourth edition, by Cryer, Robinson and Sergey Vasiliev, published in2019).
Torque Mude, “Demystifying the International Criminal Court (ICC) Target Africa Political Rhetoric”, in Open Journal of Political Science, 2017, vol. 7, pp. 178-79.
See, for example, UN Security Council, press release, “Referral of Syria to International
Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft
Resolution”, SC/11407, 22 May 2014 (https://www.legal-tools.org/doc/s934zb/).
Rome Statute, Articles 86-87, see above note 8. According to Article 87(1), the Court has
authority to make requests to States Parties for co-operation. Pursuant to Article 87(7), if aState Party fails to co-operate while such a request has been issued, the Court may refer thematter to the Assembly of States Parties or to the Security Council. According to Article
87(5), the Court can request the assistance of non-States Parties and if the State has enteredinto an ad hoc arrangement or agreement with the Court, and fails to co-operate pursuant
to such request for assistance, the Court may inform the Assembly of States Parties and/or
the UN Security Council; see International Criminal Court (‘ICC’), Situation in Darfur,
Sudan, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber II, Decisionon the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s
Arrest and Surrender to the Court, 9 April 2014, ICC-02/05-01/09-195, p. 17 (https://www.

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

have referred cases of non-cooperation to either the Security Council or
the Assembly of States Parties, no meaningful measures have arguably
been taken by either of the two bodies.13 It is indeed ironical that the efforts aimed at establishing a truly independent and universal court have
had adverse consequences which may spoil the legitimacy of the Court,
which amply reflects the current reality of rule of law in the international
community. Under these circumstances, it remains to be seen how andwhen the ICC will overcome these difficulties while keeping its uniquelegitimacy.
18.3. Procedural Law
The experience of the different international criminal courts and tribunals
has also shown that there are two major issues that require particular attention in order for any international criminal trial to achieve its objectiveof delivering justice: procedural fairness, and respect for the principles oflegality and of individual culpability. 14 In the following, I will look atwhether and how the ICC has learned its lessons in relation to these matters from its predecessors, in particular the IMTFE.
The procedural law of the IMTFE and the Nuremberg IMT is basedon military law mixed with predominantly common law elements.15 At
first sight, the IMTs shared some features with the procedural systems
adopted at the ad hoc tribunals and the ICC. The proceedings at these tribunals are in principle adversarial in the sense that it is for the prosecution

13

14

15

legal-tools.org/doc/89d30d/); idem, Decision under Article 87(7) of the Rome Statute on
the non-compliance by Jordan with the request by the Court for the arrest and surrender ofOmar Al-Bashir, 11 December 2017, ICC-02/05-01/09-309, paras. 44-55 (https://www.
legal-tools.org/doc/5bdd7f/).
ICC, Office of the Prosecutor, Twenty-seventh report of the Prosecutor of the International
Criminal Court to the United Nations Security Council pursuant to UNSCR 1593 (2005),
20 June 2018 (https://www.legal-tools.org/doc/1s17l0/); ICC, Situation in Republic of
Kenya, The Prosecutor v. Uhuru Muigai Kenyatta (‘Kenyatta’), Trial Chamber V(b), Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of
the Statute, 3 December 2014, ICC-01/09-02/11-982, para. 90 (https://www.legal-tools.
org/doc/d9a9e5/).
Finnin and McCormack, 2011, p. 355, see above note 7; Futamura, 2008, p. 60, see above
note 7; Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal, Oxford University Press, 2008, p. 311; Elies van Sliedregt, Individual Criminal
Responsibility in International Law, Oxford University Press, 2012, pp. 9-16.
Evan J. Wallach, “The Procedural And Evidentiary Rules of the Post-World War II War
Crimes Trials: Did They Provide An Outline for International Legal Procedure?”, in Columbia Journal of Transnational Law, 1999, vol. 37, pp. 855-66.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

to bring charges against the accused, and that the majority of the evidence
is submitted by the parties.16 A more notable feature, however, is the flexibility of evidentiary rules. It is indeed a challenge to strictly adhere tocommon law evidentiary rules, including those related to the admissibility
and reliability of hearsay evidence, in an attempt to try political and military leaders charged with the commission of complex organized crimes
efficiently and expeditiously.17
Following the precedent of the Nuremberg IMT, and in line with thepractice of military commissions, Article 13 of the Tokyo Charter provides in relation to admissibility that: “The Tribunal shall not be bound bytechnical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any
evidence which it deems to have probative value”. Under paragraph (c),the Article then adds an extensive list of specific admissible documentary
evidence, including affidavits and unsworn statements.18 It is apparent thatthe aforementioned provisions are not in line with the basic common law
evidentiary rules. While they might not necessarily be inconsistent withsome civil legal traditions, which provide for fewer rules on the admissibility of evidence, such inquisitorial systems instead provide for their own
safeguards, which were absent in the IMTFE’s otherwise basically adversarial system.19
More problematically, however, it has been pointed out that the application of those rules of procedure and evidence contained a number ofshortcomings concerning the rights of the accused, particularly the right tocross-examination and the equality of arms, both constituting core valuesof the common law procedure.20 For example, it has been argued that theadmission of prosecution documentary evidence was almost without limi-

16

17
18
19
20

Boister and Cryer, 2008, pp. 430-31, see above note 14; Richard May and Marieke Wierda,“Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha”, inColumbia Journal of Transnational Law, 1999, vol. 37, no. 3, p. 727; Kai Ambos, “International criminal procedure: “adversarial”, “inquisitorial” or ‘mixed?”, in International Criminal Law Review, 2003, vol. 3, pp. 7-10.
Boister and Cryer, 2008, p. 104, see above note 14.
Tokyo Charter, Article 13, see above note 3.
May and Wierda, 1999, pp. 744-45, see above note 16.
Boister and Cryer, 2008, p. 311, see above note 14.

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

tation, while the same rules did not apply for defence evidence,21 and thatprosecution hearsay evidence was admitted as a rule, while defence hearsay evidence was systematically refused.22 The resources available to theparties also differed. For instance, the prosecution had over 100 translators at its disposal, while the defence only had three.23
The IMTFE’s procedural shortcomings, arguably, influenced thedrafters of the ad hoc tribunals’ founding instruments.24 More decisive,
however, was the post-World War II development of international humanrights law and the adoption of the International Covenant on Civil andPolitical Rights. There, Article 14 provides for the right to a fair trial, including, inter alia, the right to a fair and public hearing by a competent,
independent and impartial tribunal, the presumption of innocence, and theright to examine witnesses against oneself. This right has been reflected in
the statutes of the ad hoc tribunals,25 as well as in Article 67 of the Rome
Statute. The provisions of the Covenant and its sister regional human righttreaties are particularly important in that: (i) they apply to everyone indiscriminately, including aliens appearing before military commissions; and(ii) their application has produced a rich jurisprudence. The European
Convention on Human Rights is crucial in the latter aspect since the European Court of Human Rights has developed jurisprudence on various
aspects concerning the procedural rights of the accused, which are applicable to both common law and civil law systems.26
The two ad hoc tribunals have adopted rules of procedure and evidence that are closer to the common law adversarial system, leaving out
21

22
23
24
25
26

Futamura, 2008, p. 60, see above note 7; Boister and Cryer, 2008, p. 104, see above note
14; Finnin and McCormack, 2011, p. 355, see above note 7; Van Sliedregt, 2012, pp. 9-16,
see above note 14.
Boister and Cryer, 2008, p. 104, see above note 14.
Ibid.
Finnin and McCormack, 2011, pp. 355-56, see above note 7.
ICTY Statute, Article 20, see above note 5; ICTR Statute, Articles 19-20, see above note 5.
See, for example, European Court of Human Rights, Case of Barberà, Messegué andJabardo v. Spain, Application no. 10590/83, Judgment, 6 December 1988, para. 68(https://www.legal-tools.org/doc/a84e3a/); Case of Schenk v. Switzerland, Application no.
10862/84, Judgment, 12 July 1988, para. 46 (https://www.legal-tools.org/doc/eb5a77/);
Case of Delta v. France, Application no. 11444/85, Judgment, 19 December 1990, paras.
35-36 (https://www.legal-tools.org/doc/61d15d/); Case of Ruiz-Mateos v. Spain, Application no. 12952/87, Judgment, 23 June 1993, para. 63 (https://www.legal-tools.org/doc/
1face9/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

the military law influence contained in the procedure of the IMTs.27 However, as mentioned before, the specific characteristics of the crimes under
their jurisdiction have led the way to more flexible procedures with regard
to evidence, for example by allowing the admission of more documentary
evidence than under traditional common law systems, albeit within strict
limits and while respecting the right to cross-examination. 28 Strict requirements in relation to disclosure also constitute a safeguard for therights of the accused.29 The ICTY Rules of Procedure and Evidence wereamended to allow for the admission of written statements and transcripts
in lieu of oral testimony when they “[go] to proof of a matter other than
the acts and conduct of the accused as charged in the indictment” and aslong as a number of conditions are fulfilled (Rule 92bis), when the evidence emanates from unavailable persons (Rule 92quater), or from persons who have been subjected to interference (Rule 92quinquies), again
under strict conditions.
The ICC has been faced with even tougher challenges in order tofirmly uphold the most recent human right standards while efficiently and
expeditiously conducting its trials. The cases that have been brought before the ICC are not only complex and large-scale, but have also takenplace in remote rural areas many years ago.30 If the Court were to rely only on direct oral evidence, it would take months only to establish that
there has been a conflict. On the other hand, reliable documentary evidence has often proved to be rather scarce while testimonial evidence often comes with serious credibility issues. Furthermore, in many cases, thehostilities in the affected countries are still ongoing, requiring a strong
witness protection programme to be put in place. This means that proper
disclosure will take much longer and be more difficult in comparison with

27
28
29
30

May and Wierda, 1999, pp. 735-37, see above note 16.
Ibid., pp. 743-45.
Ibid., pp. 756-61.
See, for example, ICC, Situation in the Democratic Republic of the Congo, The Prosecutor
v. Germain Katanga and Mathieu Ngudjolo Chui (‘Katanga’), Pre-Trial Chamber I, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07-717, paras. 1-7(‘Confirmation Decision’) (https://www.legal-tools.org/doc/67a9ec/); Situation in Uganda,
The Prosecutor v. Dominic Ongwen (‘Ongwen’), Pre-Trial Chamber II, Decision on theconfirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422,
paras. 3-5 (‘Confirmation Decision’) (https://www.legal-tools.org/doc/74fc6e/).

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

usual domestic cases.31 Under these circumstances, the ICC was quick inintroducing flexible rules of evidence in line with the practice of the ad
hoc tribunals discussed above.32
The major difference between the ICC and the ad hoc tribunals in
responding to these procedural challenges is that the ICC embarked on an
ambitious task of establishing a hybrid type of procedure, belonging toneither the common law nor the civil law system.33 For example, with regard to evidence, Article 64(9)(a) of the Rome Statute stipulates that:
The Court may rule on the relevance or admissibility of any
evidence, taking into account, inter alia, the probative valueof the evidence and any prejudice that such evidence may
cause to a fair trial or to a fair evaluation of the testimony ofa witness, in accordance with the Rules of Procedure and Evidence.’

The Rules of Procedure and Evidence, however, have little to add in termsof the exact process to be carried out when evaluating relevance or admissibility.34 This is mainly because, unlike at the ad hoc tribunals, not only
the Court’s statute, but also its Rules of Procedure and Evidence, havebeen negotiated and adopted by States with different legal traditions, 35
which could not agree on many of the crucial procedural issues such as
the rules to be applied in relation to the admission of evidence. Therefore,much was left for the chambers to decide on a case-by-case basis.
The system put in place thus allows each trial chamber to look forthe best mix from various legal systems, which enables it to effectively
deal with the crimes before it. In addition, while the trial proceedings are
31

32

33

34

35

See, for example, ICC, Situation in the Democratic Republic of the Congo, The Prosecutor
v. Bosco Ntaganda (‘Ntaganda’), Trial Chamber VI, Public redacted version of “Prosecution application for delayed disclosure”, 17 February 2015, ICC-01/04-02/06-461, para. 4(https://www.legal-tools.org/doc/e67ed4/).
David Hunt, “The International Criminal Court: High Hopes, ‘Creative Ambiguity’ and an
Unfortunate Mistrust in International Judges”, in Journal of International Criminal Justice,
2004, vol. 2, pp. 61-62; Gideon Boas, “Developments in the Law of Procedure and Evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court”, in Criminal Law Forum, 2001, vol. 12, pp. 169, 180-82.
Claus Kreß, “The Procedural Law of the International Criminal Court in Outline: Anatomy
of a Unique Compromise”, in Journal of International Criminal Justice, 2003, vol. 1, no. 3,
p. 605.
ICC, Rules of Procedure and Evidence, ICC-PIDS-LT-02-002/13, Rule 64 (https://www.
legal-tools.org/doc/8bcf6f/).
See Rome Statute, Article 51, see above note 8.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

in essence adversarial, the ICC, like the IMTs and the ad hoc tribunals,
does not rely on juries.36 Moreover, the Rome Statute, unlike the statutesof its predecessors, provides for a distinct pre-trial procedure where thepre-trial chamber performs a review of the case before the commencementof the actual trial.37 This system certainly helps the chambers introduce
more flexible elements of civil law procedures in order to meet the abovementioned challenges. Under these circumstances, some trial chambers
have adopted a more common law-based approach of ruling on the admission of each item of evidence at the point of its submission, based on a
prima facie evaluation of its relevance, probative value, and potential
prejudice against the accused. 38 Other trial chambers have preferred amore civil law-based approach, and do not rule on the admissibility ofevidence at the point of its submission, deferring the assessment of evidence, including its admissibility, to the final deliberations.39 Furthermore,some chambers allow for witness preparation by the calling party understrict conditions, while other chambers prohibit the practice in its entirety.40 Chambers also employ different approaches in relation to the use of
36
37
38

39

40

Ibid., Articles 57, 74 and 83.
Ibid., Articles 60-61.
ICC, Ntaganda, Trial Chamber VI, Decision on the conduct of proceedings, 2 June 2015,
ICC-01/04-02/06-619 (‘Conduct of Proceedings Decision’) (https://www.legal-tools.org/
doc/03357c/); idem, Decision on Defence Request for admission of documents used during
the testimony of Witness P-0933, 27 May 2016, ICC-01/04-02/06-1340, para. 5 (https://www.legal-tools.org/doc/7cf525/). The Trial Chambers in the Lubanga (see below) and
Katanga cases took similar approaches.
ICC, Ongwen, Trial Chamber IX, Initial Directions on the Conduct of Proceedings, 13 July
2016, ICC-02/04-01/15-497, paras. 27-28 (‘Conduct of Proceedings Directions’) (https://www.legal-tools.org/doc/60d63f/); Situation in the Republic of Côte d’Ivoire, The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé (‘Gbagbo’), Trial Chamber I, Decisionon the submission and admission of evidence, 29 January 2016, ICC-02/11-01/15-405, para. 19 (https://www.legal-tools.org/doc/7b6dce/).
ICC, Situation in the Central African Republic, The Prosecutor v. Jean-Pierre Bemba
Gombo (‘Bemba’), Trial Chamber III, Decision on the Unified Protocol on the practices
used to prepare and familiarise witnesses for giving testimony at trial, 18 November 2010,
ICC-01/05-01/08-1016, para. 10 (https://www.legal-tools.org/doc/291082/); Gbagbo, Trial
Chamber I, Decision on witness preparation and familiarisation, 2 December 2015, ICC02/11-01/15-355, para. 19 (https://www.legal-tools.org/doc/aa620a/); Ongwen, Trial
Chamber IX, Decision on Protocols to be Adopted at Trial, 22 July 2016, ICC-02/04-01/
15-504, para. 16 (https://www.legal-tools.org/doc/311696/); Ntaganda, Trial Chamber VI,
Decision on witness preparation, 16 June 2015, ICC-01/04-02/06-652, paras. 17-18(https://www.legal-tools.org/doc/ad21ce/); Situation in the Republic of Kenya, The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber V, Decision on wit-

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

leading questions and the scope of cross-examination.41 So far, the Appeals Chamber has refrained from making decisive decisions on theseprocedural issues.
As one can imagine, differences in the applicable procedural rules
within the same Court can be rather confusing for the parties. The unpredictability as to the applicable procedure before a case has been assigned
to a particular trial chamber is indeed far from ideal, especially for the
defence. Recently, the ICC published a “Chambers Practice Manual” approved by the Judges.42 To a certain extent, this manual consolidated hitherto different existing practices in the different pre-trial chambers, but has
not yet achieved much in consolidating the various practices of different
trial chambers. This shows how difficult it is to find the most suitable procedural rules to try the perpetrators of the most serious crimes in an international court effectively and expeditiously while adhering to existing
human right standards. This endeavour is still ongoing.
It is also to be noted that the ICC is the first international criminal
tribunal to establish a system of victim participation and reparations, following criticism that its predecessors did not pay enough attention to thevictims of crimes.43 Under this system, the victims have the right to present their views and concerns where their personal interests are affected.44
They usually do so through common representatives of victims during theproceedings.45 Many chambers have also allowed victims to present evi-

41

42
43

44
45

ness preparation, 2 January 2013, ICC-01/09-01/11-524, paras. 50-51 (https://www.legaltools.org/doc/82c717/).
ICC, Bemba, Trial Chamber III, Decision on Directions for the Conduct of the Proceedings,
19 November 2010, ICC-01/05-01/08-1023, paras. 7-20 (https://www.legal-tools.org/doc/
ac5449/); Ntaganda, Conduct of Proceedings Decision, 2 June 2015, paras. 21-30, see above
note 38; Katanga, Trial Chamber II, Directions for the conduct of the proceedings and testimony in accordance with rule 140, 20 November 2009, ICC-01/04-01/07-1665, paras. 61-91(https://www.legal-tools.org/doc/ddb123/); Ongwen, Conduct of Proceedings Directions, 13
July 2016, paras. 9-31, see above note 39.
ICC, Chambers Practice Manual, May 2017 (https://www.legal-tools.org/doc/f0ee26/).
Mariana Pena and Gaelle Carayon, “Is the ICC Making the Most of Victim Participation?”,in International Journal of Transitional Justice, 28 September 2013, vol. 7, no. 3, p. 519;
Rome Statute, Article 68, see above note 8.
Ibid., Article 68(3).
ICC, Bemba, Trial Chamber III, Decision on common legal representation of victims forthe purpose of trial, 10 November 2010, ICC-01/05-01/08-1005, paras. 34-39 (https://www.
legal-tools.org/doc/5d0fa1/).

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The Tokyo Tribunal: Perspectives on Law, History and Memory

dence.46 This sometimes involves the need for a delicate balancing between the interests of victims and the right of the accused in order toavoid that the accused faces a de facto second prosecution.47
The system of victim reparations included in the Rome Statute has
been imported from some civil law countries where the same chamberthat has convicted an accused person can order him or her to provide appropriate reparations to the victims. The reparations may include restitution, compensation and rehabilitation.48 While this has been highly appreciated as representing a major step forward in international criminal law,
the approach also contains some serious practical challenges. For example,
in most cases before the ICC, it is almost impossible to accurately identify
the individual victims of the specific crimes committed by the accused.
Further, it is even more difficult to assess the exact amount of the damages caused by the crimes concerned, even based on the evidentiary threshold applied when establishing civil liability. Lastly, in many cases it may
be even inappropriate to provide reparations to victims of some crimes
while there are others in the same community suffering from the consequences of similar crimes in close geographic and temporal vicinity. Sometrial chambers have developed a system of collective reparation, but it is
not clear to what extent this is truly consistent with what the Rome Statuteenvisaged.49

46

47

48
49

ICC, Ntaganda, Trial Chamber VI, Public redacted version of ‘Decision on the request by
the Legal Representative of the Victims of the Attacks for leave to present evidence andvictims’ views and concerns’ (10 February 2017, ICC-01/04-02/06-1780-Conf), 15 February 2017, ICC-01/04-02/06-1780, paras. 22, 25, 31 (https://www.legal-tools.org/doc/
64f3d3/); Bemba, Trial Chamber III, Order regarding applications by victims to present
their views and concerns or to present evidence, 21 November 2011, ICC-01/05-01/081935, para. 3 (https://www.legal-tools.org/doc/621c40/).
Charles P. Trumbull IV, “The Victims of Victim Participation in International Criminal
Proceedings”, in Michigan Journal of International Law, 2008, vol. 29, no. 4, pp. 809-11.
Rome Statute, Article 75, see above note 8.
ICC, Situation in the Republic of Mali, The Prosecutor v. Ahmad al Faqi al Mahdi, Trial
Chamber VIII, Reparations Order, 17 August 2017, ICC-01/12-01/15-236, para. 45(https://www.legal-tools.org/doc/02d1bb/); Katanga, Trial Chamber II, Order for Reparations pursuant to Article 75 of the Statute, 24 March 2017, ICC-01/04-01/07-3728, paras.
281-82 (https://www.legal-tools.org/doc/63d36d/).

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

18.4. Substantive Law
In terms of substantive law, the recent activation of the ‘crime of aggression’ under the jurisdiction of the ICC50 has opened the possibility that the
IMTFE’s jurisprudence on the matter may have an impact on the Court’s
jurisprudence. However, since the ICC has not yet had any relevant cases
before it, I will refrain from discussing the elements of this crime. I will
also refrain from discussing the issue of how the IMTFE has dealt withthe ‘murder’ charge, which touches upon the fundamental principle governing the post-Cold War development of international criminal law,
namely the distinction between jus ad bellum and jus in bellon area where
the IMTFE has had no impact on the ICC.
The substantive law aspects where the IMTFE’s jurisprudence has
already had a certain influence on the ICC’s jurisprudence are: (i) the
broad interpretation of individual criminal responsibility; and (ii) the doctrine of command responsibility. In this regard, the treaty-based nature of
the ICC has also significantly influenced the applicable substantive law.
Whereas the IMTs and the ad hoc tribunals relied on customary international law when establishing the substantive law applicable before them,
the ICC applies the Rome Statute in accordance with the interpretative
principles stipulated in the Vienna Convention on the Law of Treaties.51
18.4.1. Individual Criminal Responsibility
In pursuing the individual criminal responsibility of the accused for thecrimes under its jurisdiction, the IMTFE developed a broad interpretationof criminal liability. Following Article 6 of the Nuremberg Charter, thelast part of Article 5 of the Tokyo Charter stipulates that, with regard tocrimes under its jurisdiction, “[l]eaders, organizers, instigators and accomplices participating in the formulation or execution of a common planor conspiracy to commit any of the foregoing crimes are responsible for
all acts performed by any person in execution of such plan”. This form of
50

51

ICC, Assembly of States Parties, Activation of the jurisdiction of the Court over the crimeof aggression, 14 December 2017, ICC-ASP/16/Res.5 (https://www.legal-tools.org/doc/
6206b2/).
See Rome Statute, Article 21, see above note 8. Article 21 hierarchically lists all thesources of law upon which the Court may rely. First, the Court should apply the Statuteand the related core documents of the Court. Secondly, it should apply treaties and principles of international law. Then, the Court can rely on general principles of law derived by
the Court from national laws and on principles and rules of law as interpreted in its previous decisions.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

liability was not very much elaborated upon at the IMTFE in relation tocrimes against humanity and war crimes due to the focus on crimes
against peace. However, the provision was used extensively in relation tocrimes against peace, together with the concept of ‘conspiracy’ as explained below.
In relation to ‘crimes against peace’, Article 5(a) of the Tokyo Charter stipulates an additional form of individual responsibility for “the planning, preparation, initiation or waging of a declared or undeclared war of
aggression, or a war in violation of international law, treaties, agreements
or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”. Based on these provisions, the
IMTFE developed a broad concept of liability, including the criminal liability of those who “shape the policy and influence” the aggressive way.
This approach is broader than the one adopted by the Nuremberg IMT,
which attached liability to those who were in a position to “control anddirect” the aggressive war, based on the same provisions.52 The concept ofconspiracy adopted by the IMTFE was far from clear as a legal concept. It
is not even clear whether the concept was the same as the one comprisedin the traditional common law crime of conspiracy, where conspiracy constitutes an independent inchoate crime.53 Moreover, the majority insisted
that the concept forms part of customary international law.54 The reasoning behind this finding, however, is dubious. Therefore, ‘conspiracy’ as
applied at the IMTFE was not only problematic in terms of the principleof culpability, but also, arguably, inconsistent with the principle of legality.
It is notable, in this regard, that the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide,55 in its Article 3, criminalizes‘conspiracy’ to commit genocide, but this part of the Convention has notbeen reflected in the Rome Statute.

52

53
54

55

Neil Boister, “The Application of Collective and Comprehensive Criminal Responsibility
for Aggression at the Tokyo International Military Tribunal: The Measure of the Crime of
Aggression?”, in Journal of International Criminal Justice, 2010, vol. 8, no. 2, pp. 446-47.
Boister and Cryer, 2008, p. 309, see above note 14.
For the nature of the ‘conspiracy’ as adopted in the IMTFE majority judgment, its difference with the one employed in the Nuremberg judgment and its shortcomings, see Boister,
2010, vol. 8, pp. 431-33, see above note 52.
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948 (entered into force on 12 January 1951) (https://www.legal-tools.org/doc/498c38/).

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

The Rome Statute took a more restrictive approach towards thecrime of aggression. Article 8bis, adopted in 2010, stipulates at paragraph
1 that:
For the purpose of this Statute, “crime of aggression” means
the planning, preparation, initiation or execution, by a person
in a position effectively to exercise control over or to direct
the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes amanifest violation of the Charter of the United Nations.

Following this definition of the crime, Article 25 of the Rome Statute provides at paragraph 3bis that, in respect of the crime of aggression, theprovisions of the Article dealing with individual criminal responsibility
shall only apply to persons in a position effectively to exercise control
over or to direct the political or military action of a State.56 It is notable
that, unlike at the two IMTs, individual liability for the crime of aggression is much more limited than for war crimes and crimes against humanity.
The broad interpretation of liability developed by the IMTFE influenced the development of international criminal law beyond the scope ofcrimes against peace. All subsequent international criminal tribunals, including the ICC, have faced the same challenges as the IMTFE in relation
to how to properly attribute criminal liability to those leaders or commanders who are often remotely situated from the actual scene of the multiple crimes committed by their subordinates, while strictly adhering to
the principle of personal culpability or individual liability. Sometimes, theleaders and the actual perpetrators form part of an organization with aninternal hierarchy and several layers of authority, including ‘intermediate
leaders’. Sometimes, no definable organization exists save for a loose andmore or less random association of people. Sometimes, the leaders and theperpetrator share a grand common plan. Sometimes, there is nothing morethan an instant and haphazard drive for harming people belonging to another community.
The notion of liability contained in the last part of Article 6 of the
Nuremberg Charter and Article 5 of the Tokyo Charter was further elaborated in Control Council Law No. 10 cases. Based on those cases, the ad
hoc tribunals have adopted and developed the concept of ‘joint criminal
56

Rome Statute, Articles 8bis and 25(3)bis, see above note 8.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

enterprise’ (‘JCE’). The ICTY Appeals Chamber in Tadić clarified thisconcept as “the principle that when two or more persons act together tofurther a common criminal purpose, offences perpetrated by any of them
may entail the criminal liability of all the members of the group”.57
While not going further into this mode of liability, four points arenoteworthy in this regard. First, unlike the common law concept of ‘conspiracy’, JCE is not an independent crime, but a mode of liability.58 Second, JCE has been regarded as a principal, as opposed to an accessorial
mode of liability, although the dividing line between the two has been often unclear.59 Third, similarly to the two IMTs, the ICTY found that theexistence of JCE as a mode of liability had been established in customaryinternational law.60 The ICTY based this finding on the above-mentioned
case law, the UN Terrorist Bombing Convention,61 the Rome Statute, andnational laws.62 Fourth, JCE, especially its third category which involves“a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, wasnevertheless a natural and foreseeable consequence of the effecting of that
common purpose” is not without criticism of being too broad, from theviewpoint of the principle of culpability.63
While both IMTs and the ad hoc tribunals adopted a broad interpretation of principal liability based on customary international law (despite
the IMTs’ lack of conceptual clarity on the nature of ‘conspiracy’ for thecrime of aggression as mentioned above), the ICC took quite a different
57

58

59

60
61

62
63

ICTY, The Prosecutor v. Duško Tadić, Appeals Chamber, Judgement, 15 July 1999, IT94-1-A, para. 195 (‘Tadić, Appeals Judgment’) (https://www.legal-tools.org/doc/8efc3a/).
ICTY, The Prosecutor v. Milan Milutinović et al., Trial Chamber, Judgement, 26 February
2009, IT-05-87-T, para. 106 (https://www.legal-tools.org/doc/9eb7c3/, https://www.legaltools.org/doc/f0666a/, https://www.legal-tools.org/doc/d79e85/, https://www.legal-tools.
org/doc/3b31aa/).
ICTY, The Prosecutor v. Mitar Vasiljević, Appeals Chamber, Judgement, 25 February
2004, IT-98-32-A, para. 102 (https://www.legal-tools.org/doc/dbe7c4/).
ICTY, Tadić, Appeals Judgment, paras. 194, 226, see above note 57.
International Convention for the Suppression of Terrorist Bombing, 15 December 1997(‘ICSTB’), Article 2(3)(c) (https://www.legal-tools.org/doc/dda995/). See further below
note 73 and accompanying text.
ICTY, Tadić, Appeals Judgment, paras. 194-226, see above note 57.
Among many others, see Jens David Ohlin, “Three Conceptual Problems with the Doctrineof Joint Criminal Enterprise”, in Journal of International Criminal Justice, 2007, vol. 5, no.
1, pp. 85-88; ICTY, Tadić, Appeals Judgment, para. 204, see above note 57.

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

approach. Article 25(3)(a) of the Rome Statute attaches criminal liability
to a person who “[c]ommits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that otherperson is criminally responsible”. Article 25(3)(b) to (d) provide for liability for ordering, soliciting, inducing, aiding or abetting the (attempted)
commission of a crime. Article 25(3)(d) provides for the liability of a person who:
In any other way contributes to the commission or attempted
commission of such a crime by a group of persons actingwith a common purpose. Such contribution shall be intentional and shall either:(i) Be made with the aim of furthering the criminal activity
or criminal purpose of the group, where such activity or
purpose involves the commission of a crime within thejurisdiction of the Court; or(ii) Be made in the knowledge of the intention of the group
to commit the crime.

The Appeals Chamber in Lubanga acknowledged that Article 25(3)(a)refers to the liability of a perpetrator as opposed to that of an accessory.64
It should also be noted that liability under Article 25(3)(d) is similar toliability established pursuant to the JCE doctrine, but does not constitute a
principal form of liability.65
The Appeals Chamber in Lubanga also endorsed the Trial Chamber’s interpretation of co-perpetration under Article 25(3)(a), requiring“an agreement or common plan between the accused and at least one otherco-perpetrator that, once implemented, will result in the commission of
the relevant crime in the ordinary course of events”. It also acknowledgedthat “the accused provided an essential contribution to the common planthat resulted in the commission of the relevant crime”, applying the ‘con-

64

65

ICC, Situation in the Democratic Republic of the Congo, The Prosecutor v. Thomas
Lubanga Dyilo (‘Lubanga’), Appeals Chamber, Judgement on the appeal of Mr Thomas
Lubanga Dyilo against his conviction, 1 December 2014, ICC-01/04-01/06-3121, para.
462 (‘Appeals Judgment’) (https://www.legal-tools.org/doc/585c75/).
ICC, Katanga, Confirmation Decision, 30 September 2008, para. 482, see above note 30;
Situation in the Democratic Republic of the Congo, The Prosecutor v. Callixte Mbarushimana, Pre-Trial Chamber I, Decision on the confirmation of charges, 16 December
2011, ICC-01/04-01/10-465, paras. 288-89 (https://www.legal-tools.org/doc/63028f/);
Cryer, Friman, Robinson and Wilmshurst, 2014, p. 362, see above note 9.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

trol over the crime’ theory. 66 Derived from German scholarly doctrine(‘Tatherrschaftslehre’), this doctrine was further developed in light of theEichmann trial (introducing the notion of ‘indirect perpetration by meansof an organization’, or ‘Organisationsherrschaft’) and was eventually applied by German courts in order to deal with the criminal responsibility of
East German leaders for crimes committed during the Cold War.67 Morerecently, the doctrine has also been applied by German courts to complex
corporate crimes.68
The ICC has departed from the practice of its predecessors in atleast two ways. Firstly, the ICC does not rely on customary internationallaw in broadening the scope of liability. This is the natural result of the
ICC’s treaty-based nature, which has at least solved the challenges in finding a proper basis for liability in international law, thereby freeing the
Court from criticism that its law of liability is retroactive. The Appeals
Chamber in Lubanga indeed stressed that it is interpreting and applying
Article 25(3)(a) of the Rome Statute rather than proposing to apply a particular legal doctrine or theory as a source of law.69 The next question
therefore is whether the Appeals Chamber has applied this specific provision correctly by adopting the ‘control over the crime’ theory. 70 Somehave already expressed scepticism, arguing that the theory goes beyond
the literal interpretation of the Rome Statute in accordance with the Vienna Convention on the Law of Treaties, and that a doctrine specific to aparticular country should not be read into an article of the statute.71

66
67

68

69
70

71

ICC, Lubanga, Appeals Judgment, paras. 469-73, see above note 64.
Neha Jain, “The Control Theory of Perpetration in International Criminal Law”, in Chicago Journal of International Law, 2011, vol. 12, no. 1, pp. 163-66.
For some of the relevant jurisprudence, see Thomas Weigend, “Problems of Attribution inInternational Criminal Law: A German Perspective”, in Journal of International Criminal
Justice, 2014, vol. 12, no. 2, pp. 259-60.
ICC, Lubanga, Appeals Judgment, para. 470, see above note 64.
Ibid., para. 473; contrast Lubanga, Trial Chamber, Judgement pursuant to Article 74 of the
Statute, Separate Opinion of Judge Adrian Fulford, 14 March 2012, ICC-01/04-01/06-2842,
paras. 6-12 (https://www.legal-tools.org/doc/677866/); ICC, Situation in the Democratic
Republic of the Congo, The Prosecutor v. Mathieu Ngudjolo Chui, Trial Chamber II,
Judgment pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine
Van den Wyngaert, 18 December 2012, ICC-01/04-02/12-4, paras. 52, 57 (‘Chui, Van den
Wyngaert Concurring Opinion’) (https://www.legal-tools.org/doc/7d5200/).
Ohlin, 2007, pp. 527-30, see above note 63.

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

The development of international criminal law in this respect has
also been influenced by the various methodologies employed to fightagainst organized crime and terrorism, particularly in some common law
countries.72 Some of these standards have already been accepted in widely
ratified UN conventions against organized crime and terrorism,73 although
it could hardly be argued that any of them forms part of customary international law. For example, Article 52(3)(c) of the 1998 International Convention for the Suppression of Terrorist Bombings criminalizes contribution to the commission of the relevant crimes
by a group of persons acting with a common purpose; suchcontribution shall be intentional and either be made with theaim of furthering the general criminal activity or purpose of
the group or be made in the knowledge of the intention of thegroup to commit the offence or offences concerned.

This provision was cited in the above-mentioned Tadić Appeals Judgmentin justifying that JCE forms part of customary international law.74
Article 5 of the UN Convention against Transnational Organized
Crime adopted in 2000 is even more comprehensive in this respect. According to this article, the States Parties to the Convention shall criminalize either (i) agreeing with one or more other persons to commit a serious
crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law,
involving an act undertaken by one of the participants in furtherance of
the agreement or involving an organized criminal group, or (ii) conduct by
a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes
in question, takes an active part in (a) criminal activities of the organizedcriminal group, or (b) other activities of the organized criminal group in
the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim. According to the United Nations Office on Drugs and Crime, who is the custodian of the convention,
option (i) reflects the practice of the mostly common law countries whichhave conspiracy laws, and option (ii) reflects criminal association laws
72

73

74

Jens Meierhenrich, “Conspiracy in International Law”, in Annual Review of Law and Social Sciences, 2006, vol. 2, pp. 345-55.
See United Nations Convention against Transnational Organized Crimes and the Protocols
thereto, 2004 (https://www.legal-tools.org/doc/dbce6b/); ICSTB, see above note 61.
ICTY, Tadić, Appeals Judgment, para. 221, see above note 57.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

adopted in some civil law jurisdictions.75 In this context, Article 9 of the
Nuremberg Charter stipulates that “[a]t the trial of any individual memberof any group or organization the Tribunal may declare (in connection withany act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization”.
So far, the only ICC appeals judgment on the nature and scope ofprincipal liability under Article 25 of the Rome Statute is the Lubanga
Appeals Judgment. Several pre-trial chamber decisions have also adopted
the concept of ‘indirect co-perpetration’ based on the same provision, butwith a strong dissent.76
It is also possible that future ICC jurisprudence will be influenced
by the development of national and international criminal law in otherareas, in particular in the area of organized crime and terrorism (and viceversa). While the ICC has come a long way from the IMTFE, it still remains to be seen how the concept of co-perpetration will develop in the
future and whether the ICC will be able to find a way for the most proper
attribution of criminal responsibility to those who are truly culpable forthe crimes committed.
18.4.2. Command Responsibility
The IMTFE’s jurisprudence has been particularly influential in relation to
the mode of liability of command responsibility. While the Tokyo Charterdid not contain any specific provision in relation to this mode of liability,
the Tribunal basically followed the reasoning set out by a US military

75

76

United Nations Office on Drugs and Crime, Vienna, “Model Legislative Provisions against
Organized Crime”, 2012, pp. 29-30 (https://www.legal-tools.org/doc/6bee5f/).
ICC, Katanga, Confirmation Decision, paras. 492-93, 519, see note above 30; Situation in
the Republic of Kenya, The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey
and Joshua Arap Sang, Pre-Trial Chamber II, Decision on the Confirmation of Charges
Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, ICC-01/09-01/
11-373, para. 292 (https://www.legal-tools.org/doc/96c3c2/); Kenyatta, Pre-Trial Chamber
II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of theRome Statute, 23 January 2012, ICC-01/09-02/11-382, para. 297 (https://www.legal-tools.
org/doc/4972c0/); Ntaganda, Pre-Trial Chamber III, Decision Pursuant to Article 61(7)(a)and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, 9June 2014, ICC-01/04-02/06-309, paras. 104, 121 (https://www.legal-tools.org/doc/
5686c6/); Ongwen, Confirmation Decision, 23 March 2016, paras. 31-38, see above note
30; see also Chui, Van den Wyngaert Concurring Opinion, paras. 58-64, see above note 70.

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

commission in the 1945 Yamashita case77 and found not only military but
also civilian political leaders guilty on this basis.
Some of the most extensive discussions of command responsibility
as applied in Tokyo can be found in the ICTY Čelebići and Blaškić judgments.78 At the ICTR, the issue of command responsibility of civilians, inlight of the Tokyo judgment, was considered in the Akayesu case and by
the Appeals Chamber in Bagilishema and Musema.79
Article 28 of the Rome Statute provides for command responsibility
in a slightly different wording from the formulation adopted by the ad hoc
tribunals by stating that:
A military commander or person effectively acting as a military commander shall be criminally responsible for crimes
within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective
authority and control as the case may be, as a result of his or
her failure to exercise control properly over such forces,
where:(i) That military commander or person either knew or, owing to the circumstances at the time, should have known
that the forces were committing or about to commit
such crimes; and(ii) That military commander or person failed to take allnecessary and reasonable measures within his or her
power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and prosecution.

77

78

79

United States Military Commission, Manilla, United States v. Tomoyuki Yamashita,
Judgement, 7 December 1945 (https://www.legal-tools.org/doc/c6673f/).
ICTY, The Prosecutor v. Čelebići, Trial Chamber, Judgement, 16 November 1998, IT-9621-T, paras. 330-400 (https://www.legal-tools.org/doc/6b4a33/); ICTY, Prosecutor v.
Blaškić, Trial Chamber, Judgement, 3 March 2000, IT-95-14-T, paras. 315-16 (https://www.legal-tools.org/doc/e1ae55/); Boister and Cryer, 2008, p. 304, see above note 14.
ICTR, The Prosecutor v. Jean-Paul Akayesu, Trial Chamber, Judgement, 2 September
1998, ICTR-96-4-T, para. 90 (https://www.legal-tools.org/doc/b8d7bd/); ICTR, The Prosecutor v. Alfred Musema, Trial Chamber, Judgement and Sentence, 27 January 2000,
ICTR-96-13A-T, paras. 269-75 (https://www.legal-tools.org/doc/1fc6ed/); ICTR, Prosecutor v. Ignace Bagilishema, Appeals Chamber, Appeals Judgement, 7 June 2001, ICTR-951A-A, paras. 33-38 (https://www.legal-tools.org/doc/c1eb9d/); Boister and Cryer, 2008, p.
306, see above note 14.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

While it was the two IMTs which broadened the concept of command responsibility to civilians, Article 28 also refers to the responsibility of civilian superiors, but under stricter conditions in comparison with its military counterpart.80
The first case at the ICC in which an accused was convicted at trial
level on the basis of command responsibility was the Bemba case.81 The
Trial Chamber in that case referred to the IMTFE’s jurisprudence, albeit
only through relying on ICTY judgments that, in turn, referred to it.82 It isnoted that the majority of the Appeals Chamber overturned the Trial
Judgment on issues related to, inter alia, the scope of the duty to take “allnecessary and reasonable measures” and the Trial Chamber’s assessment
as to whether the accused in the case had taken such measures.83
Trial Chamber III had previously found that responsibility under
Article 28(a) of the Rome Statute requires six elements:
1. crimes within the jurisdiction of the Court must have been committed by force;
2. the accused must have been either a military commander or a person effectively acting as a military commander;
3. the accused must have had effective command and control, or effective authority and control, over the forces that committed the crimes;
4. the accused either knew or, owing to the circumstances at the time,should have known that the forces were committing or about tocommit such crimes;
5. the accused must have failed to take all necessary and reasonablemeasures within his power to prevent or repress the commission ofsuch crimes or to submit the matter to the competent authorities forinvestigation and prosecution; and
80
81

82

83

Rome Statute, Article 28(b), see above note 8.
ICC, Bemba, Trial Chamber III, Judgement pursuant to article 74 of the Statute, 21 March
2016, ICC-01/05-01/08-3343, paras. 693-742 (‘Trial Judgment’) (https://www.legal-tools.
org/doc/edb0cf/).
Ibid., para. 204, referring to, inter alia, ICTY, The Prosecutor v. Pavle Strugar, Trial
Chamber, Judgement, 31 January 2005, IT-01-42, para. 374 and fn. 1094, citing IMTFE,
United States of America et al. v. Araki Sadao et al., Judgement, 1 November 1948.
ICC, Bemba, Appeals Chamber, Judgement on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgement pursuant to Article 74 of the Statute”, 8 June
2018, ICC-01/05-01/08-3636, paras. 189-94 (‘Appeals Judgment’) (https://www.legaltools.org/doc/40d35b/).

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

6.

the crimes committed by the forces must have been a result of the
failure of the accused to exercise control properly over them.84
This standard is largely in line with the one set out by the Yamashita
Commission,85 as well as with the IMTFE’s findings,86 but is formulated
in a more elaborate and clear language in order to better comply with theprinciples of legality and culpability. Furthermore, the evidentiary threshold required by the Trial Chamber in the Bemba case for proving each ofthese elements, such as ‘effective control’, the ‘should have known’standard, and ‘measures within his power’ was much higher than the one
required by the IMTFE or in Yamashita.87
The jurisprudence in relation to command responsibility at the ICC
is far from ripe. Most importantly, the Trial Chamber in Bemba interpreted the language contained in the chapeau of Article 28 “as a result of hisor her failure to exercise control properly” as requiring causality between
the crimes committed and the exercise of control.88 This requirement isabsent from the provisions of the statutes of the ad hoc tribunals, but
could possibly put even stricter conditions on the applicability of command responsibility. This issue was litigated before the Appeals Chamber,but the majority of the Appeals Chamber overturning the Trial Judgment
on other grounds did not answer this issue.89
18.5. Conclusion
As noted at the outset, the ICC has much in common with the IMTFE in
its efforts towards establishing individual criminal responsibility of those
who are most responsible for large-scale, complex, organized atrocities
committed by multiple perpetrators. This constitutes an inherently diffi84
85

86

87

88
89

ICC, Bemba, Trial Judgment, para. 170, see above note 81.
Major William H. Parks, “Command Responsibility for War Crimes”, in Military Law
Review, 1973, vol. 62, pp. 8, 30.
R. John Pritchard, The Tokyo Major War Crimes Trial: The Judgement, Separate Opinions,
Proceedings in Chambers, Appeals and Reviews of the International Military Tribunal forthe far East, Edwin Mellen, 1998, cited in Victor Hansen, “What’s Good for the Goose isGood for the Gander Lessons from Abu Ghraib: Time for the United States to Adopt aStandard of Command Responsibility Towards its Own”, in Gonzaga Law Review, 2006, vol.
42, no. 3, p. 370.
See, for example, ICC, Bemba, Trial Judgment, paras. 192-93, 203-04, 207-09, 213, seeabove note 81.
Ibid., para. 210.
ICC, Bemba, Appeals Judgment, paras. 195-200, see above note 83

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The Tokyo Tribunal: Perspectives on Law, History and Memory

cult task for any national court and an even more difficult, if not impossible, task for international criminal tribunals, which cannot rely on various
legal, investigative or other practical techniques developed in the different
national jurisdictions.
The challenges the IMTFE faced in this respect were tremendous
even in comparison with the Nuremberg IMT. While the former had todeal with the long history of the political and military structure of the Japanese government as a whole, the latter only dealt with a manifest policyof more or less limited and well-defined organizations. The IMTFE has
been criticized for having been far from successful in fulfilling its difficult
mandate.90 Unfortunately, these difficulties have increased rather than decreased for the subsequent international criminal tribunals, the ad hoc tribunals and the ICC, which have been and are dealing with more complicated conflict situation involving various non-governmental forces employed in countries where these tribunals lack any control.
More importantly, more than 70 years after the establishment of the
IMTFE, it is now firmly established that, for any international criminal
court to be truly effective, the following requirements need to be put inplace: (i) legitimacy and integrity of the court; (ii) procedural guarantees
of fair-trial rights; and (iii) substantive law based on the principles of legality and individual culpability. As explained above, I believe that the
IMTFE came short in truly fulfilling these requirements, while however
acknowledging that international law, including the requirements of human rights law, in the 1940s was very different from the circumstances inwhich we are currently operating.
The ad hoc tribunals have tried hard to accomplish both tasks at thesame time and produced valuable jurisprudence. The ICC has inherited a
lot from the ad hoc tribunals’ experience in this regard, while also learning lessons from the two IMTs. In addition, as noted above, its distinctive
character as an independent, universal, treaty-based tribunal has posed anumber of additional challenges for the ICC. It can hardly be said that the
ICC has already succeeded in solving all the difficulties before it.
The challenges faced by the IMTFE are in this sense quite contemporary. There are so many legal and practical obstacles that still need to be
overcome in order to achieve truly effective international criminal pro90

Futamura, 2008, pp. 60-61, see above note 7; Boister and Cryer, 2008, p. 312, see above
note 14.

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18. The International Criminal Court andthe International Military Tribunal for the Far East: Lessons Learnt or Not?

ceedings. I tried to sketch out some of them, although it is beyond my capacity to clearly indicate where we should go. Hopefully, we are headingin the right direction. Maybe we are not.

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PART V:
CONCLUSION

19______
Concluding Reflections:
Nuremberg and Tokyo –Twin Tribunals, Far Apart?
Christoph Safferling*
19.1. Introduction
The German Reich was defeated by Allied forces and surrendered unconditionally on 8 May 1945. Its Führer, Adolf Hitler, had committed suicidea week before and thus cowardly avoided criminal prosecution, which had
been decided on in the Moscow Declaration in 1943. The surviving main
war criminals like Hermann Göring, Rudolf Heß, Albert Speer, Wilhelm
Keitel, and 18 others, however, were taken to court and tried in Nuremberg from 20 November 1945 until 1 October 1946 on the basis of the
London Agreement of 8 August 1945. In the Pacific theatre of the Second
World War, the Japanese military surrendered on 2 September 1945 toGeneral MacArthur on the USS Missouri. On 19 January 1946, MacArthur issued a special proclamation establishing the International Military
Tribunal for the Far East, following mainly the model set by the Nuremberg Charter only months earlier. The reading of the final verdict against
28 defendants – including Kōki Hirota, Kiichirō Hiranuma, and General
Hideki Tōjō, but consciously sparing the Japanese Emperor – ended on 12
December 1948. With these tribunals against the aggressors of the Second
World War, the Allied nations wanted to set a precedent and criminalize
war as a means of politics. Compared to previous wars and even to the*Christoph Safferling is Professor of Criminal Law, Criminal Procedure Law, International Criminal Law and Public International Law at the Friedrich-Alexander University Erlangen-Nürnberg, Germany, where he is also the Director of the Research Unit International Criminal Law. His main fields of research are contemporary legal history, international criminal law, and the subjective elements of the crime. He has published several articles and books in criminal law, international law, and human rights law, inter alia, International Criminal Procedure (Oxford University Press, 2012) and co-edited the book The
Nuremberg Trials: International Criminal Law since 1945 (De Gruyter Saur, Berlin, 2006),
together with Herbert R. Reginbogin.

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The Tokyo Tribunal: Perspectives on Law, History and Memory

First World War, this was suddenly a new approach. Previously, the traditional Westphalian system avoided the attribution of individual criminal
responsibility for acts of war. Now, criminal law was used against political and military leaders “to save succeeding generations from the scourgeof war” and thereby avoid “untold sorrow to mankind” in the future, as
stated in the Preamble to the Charter of the United Nations (‘UN’) of 26
June 1945.
This obvious parallel in the immediate legal reaction to the aggression and the war crimes committed by both Germany and Japan would
suggest that the international military tribunals in Europe and in Asia areseen as being on equal footing, real twin tribunals. Surprisingly, this is not
the case. Nuremberg has always been treated as the original and in a way
the ‘genuine’ tribunal, to which Tokyo was second and somehow inferior.
Even their naming speaks that language: whereas the former was simply
named the International Military Tribunal (‘IMT’), the latter was suffixedwith “Far East”. Note that, in 1993 and 1994, when another pair of tribunals, the International Criminal Tribunals were created by the UN in reaction to mass atrocities in the former Yugoslavia and in Rwanda, they werecalled accordingly, emphasizing their respective equality. Consequently,
much more research has been conducted with regard to Nuremberg compared to Tokyo. It could also be that, particularly in the United States, thede-civilization of Nazi Germany and its aggression was understood assome sort of ‘betrayal’ of formerly shared values1 and would thus attract
more scholarly attention.
The conference held in 2018 in Nuremberg in the very courtroom
where the IMT held its hearings, and of which this volume is an important
outcome, tried to bridge the recognition gap between the twin tribunals in
Nuremberg and Tokyo. The contributions show in plentiful ways thatmuch more individual and comparative research is indeed warranted inorder to enhance our knowledge about these trials. After all, the basis of
our modern, post-Cold War international criminal law rests on both the
Nuremberg and the Tokyo Tribunals.

1

See Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence,
Oxford University Press, Oxford, 2016.

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19. Concluding Reflections: Nuremberg and Tokyo – Twin Tribunals, Far Apart?

19.2. The German-Japanese Criminal Law Dialogue
The German-Japanese criminal law dialogue has a long tradition. Japanese criminal law at the end of the nineteenth century was strongly rooted
in French models, but the criminal law reform of 1907 in Japan made itvery clear that it was to have its basis mainly in German criminal law.2
Although the Japanese legal culture developed as an amalgam, with thereception of the new school of Franz von Liszt in Japan, there is a proximate connection between criminal justice sciences in the Germanspeaking countries and in Japan. Dozens of Japanese scientists are on theway to German universities for their doctorates. No Festschrift, no criminal law scholars meeting in Germany is thinkable without Japanese participation. And vice versa, there are more and more German colleagues participating in criminal justice symposia in Japan. There, they engage together on dogmatically subtle disputes over the doctrines of error of law
and error of fact, and the various forms of perpetratorship. In the field of
criminal law and the doctrinal discourse, one may understand Japan andGermany as one common space of scientific discourse.
Against this background, does it not seem reasonable to supposethat the Nuremberg and the Tokyo Trials are at the forefront of a lively
academic exchange between Germany and Japan? Well, this is not thecase. International criminal law plays virtually no role in the GermanJapanese criminal law discourse. Even in the context of general principles
of criminal law, the question of indirect perpetratorship through organizations, heavily disputed in Germany with regard to Nazi crimes, is not received in Japan like, for example, in the Spanish-speaking world.3
The conference held in Nuremberg in 2018 did not deal with criminal law doctrine in Germany and Japan, but rather took the seventieth anniversary of the ‘Judgment at Tokyo’ as an opportunity to reflect on thishistoric event and its legal implication. Admittedly, the conference took
place in Nuremberg in the historic courtroom, but there were few German
and Japanese scholars participating: international experts came together.
The Tokyo Trial enjoys far lower recognition and acceptance in Japan than the Nuremberg Trial does in Germany. The mere fact that this2

3

See Keiichi Yamanaka, Geschichte und Gegenwart der japanischen Strafrechtswissenschaft, De Gruyter Saur, Berlin, 2012.
See Claus Roxin, Strafrecht, Allgemeiner Teil Band II: Besondere Erscheinungsformen
der Straftat, Verlag C.H. Beck, Munich, 2003, § 25, mn. 108 et seq.

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conference can take place in the Nuremberg Palace of Justice and visitors
can be shown an appropriate exhibition of the proceedings in the Memorium Nuremberg Trials in the attic above Courtroom 600, shows that thelegacy of Nuremberg is not denied in Germany. Germany today sees itself
obligated both to remind the world of the Nazi crimes and to commemorate the Allied trials in order to learn for the future.
Of course, that was not always the case. 4 On the contrary, theMemorium opened its doors only rather recently, in 2010. Also, until 2000,
the German accession to the European Convention on Human Rights had
been subject to a reservation with regard to its Article 7(2). There, in thisso-called ‘Nuremberg Clause’, a breach of the non-retroactivity principle
is allowed for those cases in which State injustice is “against the generalprinciples of law recognised by civilised nations”. This reservation was aclear political signal that the Nuremberg Trial was understood as a violation of the prohibition of retroactivity. Only the fall of the wall and theend of the East-West conflict changed the German attitude towards Nuremberg.5 This was not least due to the fact that the establishment of thetwo ad hoc Tribunals, as well as the plans for the adoption of a permanentInternational Criminal Court (‘ICC’) by the international community
made clear that the prosecution of the defeated German war criminals after 1945, just as the prosecution of the defeated Japanese war criminals,
does not remain the only case of implementation of international criminal
law. Rather, as laid down in the Nuremberg Principles of 1946, international criminal law claims to be relevant and applicable at all times and inall situations. Neither Germany nor Japan were thus victims of a singularcriminalization of violations of international law by the victors against thedefeated. The UN ad hoc Tribunals, as well as the ICC, are proof of thewill of the UN to establish the prohibitions of genocide, crimes against
humanity, war crimes and the crime of aggression as peremptory norms
that must be respected by everybody at all times. Thus, the charge of in-

4

5

See Ronen Steinke, The Politics of International Criminal Justice: German Perspectives
from Nuremberg to The Hague, Hart, Oxford, 2012; Hans-Peter Kaul, “Der Beitrag
Deutschlands zum Völkerstrafrecht”, in Christoph Safferling and Stefan Kirsch (eds.),
Völkerstrafrechtspolitik: Praxis des Völkerstrafrechts, Springer, Heidelberg, 2014, p. 51.
Christoph Safferling, “German Participation in the Nuremberg Trials and Its Implications
for Today”, in Beth A. Griech-Polelle (ed.), The Nuremberg War Crimes Trial and its Policy Consequences Today, second edition, Nomos, Baden-Baden, 2020, p. 33.

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19. Concluding Reflections: Nuremberg and Tokyo – Twin Tribunals, Far Apart?

justice against Germany and Japan that, as David Cohen described it during the conference, was “ridden to death”, is finally losing importance.
19.3. The German-Japanese Scientific Discourse
Interestingly, however, this common ‘shaming experience’ through international judicial procedures6 has not led to any socio-political exchange
and solidarity in this sense between Germany and Japan. The culture of
remembrance and the politics of the past play today, as far as I can see, norole in the German-Japanese scientific discourse. The Nuremberg conference also showed that there is still a considerable need to catch up with
the Tokyo process. From the outset, science has become more oriented
towards Nuremberg. Of course, that may also be because the Nuremberg
Tribunal was the first and, since it was based on an international treaty,
perhaps also the more ‘legitimate’ one compared to the Tokyo Tribunal
established upon General MacArthur’s order.
On the other hand, an 11-member bench of judges gave Japan’s trial
a stronger international character and made it possible to represent affected peoples much more profoundly than in Nuremberg, where Poland,
Hungary, Norway and many other European countries which suffered
most from the Nazi aggressive war could not take active part in the trial.
For a long time, Tokyo was regarded as a less innovative episode ofNuremberg with a correspondingly lower significance. Another reason
may be that, by shielding the Japanese Emperor from prosecution, thecredibility of international criminal justice suffered in this context. At thesame time, some key crime contexts, such as the sexual assault of Japanese soldiers against so-called ‘comfort women’, have been largely excluded from the trial.7
19.4. Post-Second World War Developments
It should not be overlooked that during the entire Cold War, at the latest
with the onset of the Cuban missile crisis, international criminal law disappeared from international politics. Not only in Japan, but also in Germany, one tried largely to close the eyes to the past. In several waves, theGerman society repeatedly had to grapple with the Holocaust as the most6

7

See Frédéric Mégret, “What Sort of Global Justice is ‘International Criminal Justice?’”, inJournal of International Criminal Justice, 2015, vol. 13, no. 1, p. 77.
Kelly D. Askin, “Comfort Women – Shifting Shame and Stigma from Victims to Victimizers”, in International Criminal Law Review, 2001, vol. 1, nos. 1-2, p. 5.

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hideous crime in human history.8 This system of industrial destruction ofhuman life was lacking in the Japanese context. On the other hand, theirown war wounds caused by the dropping of the first and until now only
atomic bombs, in Hiroshima and Nagasaki, were much more dramaticthan the brutal aerial bombardments of Allied forces in Germany in the
final years of the war. For example, the Auschwitz concentration camp is
recognized as a UNESCO World Heritage Site, as is – not without controversy – the peace monument in Hiroshima;9 the former being a place ofGerman perpetration, the later a place of Japanese suffering. The policy ofthe past was obviously different under these respective circumstances.
At the same time, Japan and Germany developed in parallel after
the Second World War. A rapid economic growth laid the foundation for
quick recovery from the war destructions. Both West Germany and Japan
were intensively sought after as urgently needed allies in the East-West
conflict, the ‘Cold War’: the former, against Russia; the latter, against
China, North Korea, and also Russia. Economic prosperity, strong Western integration as well as clearly anti-communist political systems allowed stable liberal democracies to emerge in both societies of the former
aggressors.
It must now be demanded that the lackadaisical interest in the Tokyo Tribunal be reformed into a common research offensive. It is alsohigh time to take a much closer and more intensive look at the individuals
involved in the processes: not only the perpetrators, but also the legal professionals involved – judges, prosecutors as well as defence lawyers. The
individual procedural strategies, adopted by both the prosecution and thedefence, should be critically analysed. Due to the temporal succession of
Nuremberg and Tokyo, the question arises what influence the process andthe experiences in Nuremberg had on the procedure in Tokyo.
19.5. Conclusion
Japan is now a member of the ICC and a Japanese judge is serving inchambers in The Hague. Nonetheless, in Japanese jurisprudence, interna89

See Sandra Schulz, “Film und Fernsehen als Medien der gesellschaftlichen Vergegenwärtigung des Holocaust: die deutsche Erstausstrahlung der US-amerikanischen Fernsehserie‘Holocaust’ im Jahre 1979”, in Historical Social Research, 2007, vol. 32, no. 1, p. 189.
See the report of the twentieth session of the World Heritage Committee, 2-7 December
1996 in Merida, Yucatan, Mexico, WHC-06/CONF.201/21, 10 March 1997, p. 69 and Annex V (available on UNESCO’s web site).

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19. Concluding Reflections: Nuremberg and Tokyo – Twin Tribunals, Far Apart?

tional criminal law is not yet quite present. It is high time to change this.
Not only does this correspond with the long-shared tradition of Japaneseand German criminal law jurisprudence as described above, but Japanesecriminal law doctrine and Japanese society have a lot of experience indealing with war crimes when it comes to the future of international criminal justice. Especially in times of contestation of human rights norms, as
now, it is important that democratic States which believe in pluralism,
multilateralism and the rule of law make concerted efforts to reduce impunity for atrocity-crimes in fulfilment of the promise made in the very
first Nuremberg Principle. We should all work together towards thiscommon goal and in the awareness of our own history, which proves bothin Germany and Japan that ideological seduction and totalitarianism canlead to war and annihilation, which in the end backfires in a particularly
brutal manner against one’s own people. The Nuremberg conference andthis resulting anthology testify to the richness of such joint efforts. Let us
all continue on this path.

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ANNEX: TOKYO CHARTER
Special proclamation by the Supreme Commander for the Allied Powers
at Tokyo, 19 January 1946; Charter dated 19 January 1946; amended
Charter dated 26 April 1946; Tribunal established 19 January 1946.
SPECIAL PROCLAMATIONESTABLISHMENT OF AN INTERNATIONAL MILITARY TRIBUNALFOR THE FAR EAST
Whereas, the United States and the Nations allied therewith in opposing
the illegal wars of aggression of the Axis Nations, have from time to time
made declarations of their intentions that war criminals should be brought
to justice;
Whereas, the Governments of the Allied Powers at war with Japanon the 26th July 1945 at Potsdam, declared as one of the terms of surrender that stern justice shall be meted out to all war criminals including
those who have visited cruelties upon our prisoners;
Whereas, by the Instrument of Surrender of Japan executed at Tokyo Bay, Japan, on the 2nd September 1945, the signatories for Japan, bycommand of and in behalf of the Emperor and the Japanese Government,
accepted the terms set forth in such Declaration at Potsdam;
Whereas, by such Instrument of Surrender, the authority of the Emperor and the Japanese Government to rule the state of Japan is made subject to the Supreme Commander for the Allied Powers, who is authorized
to take such steps as he deems proper to effectuate the terms of surrender;
Whereas, the undersigned has been designated by the Allied Powers
as Supreme Commander for the Allied Powers to carry into effect thegeneral surrender of the Japanese armed forces;
Whereas; the Governments of the United States, Great Britain andRussia at the Moscow Conference, 26th December 1945, having considered the effectuation by Japan of the Terms of Surrender, with the concur-

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The Tokyo Tribunal: Perspectives on Law, History and Memory

rence of China have agreed that the Supreme Commander shall issue all
Orders for the implementation of the Terms of Surrender.
Now, therefore, I, Douglas MacArthur, as Supreme Commander for
the Allied Powers, by virtue of the authority so conferred upon me, in order to implement the Term of Surrender which requires the meting out ofstern justice to war criminals, do order and provide as follows:
ARTICLE 1. There shall be established an International Military
Tribunal for the Far East for the trial of those persons charged individually,or as members of organizations, or in both capacities, with offenses which
include crimes against peace.
ARTICLE 2. The Constitution, jurisdiction and functions of thisTribunal are those set forth in the Charter of the International Military
Tribunal for the Far East, approved by me this day.
ARTICLE 3. Nothing in this Order shall prejudice the jurisdictionof any other international, national or occupation court, commission orother tribunal established or to be established in Japan or in any territoryof a United Nation with which Japan has been at war, for the trial of war
criminals.
Given under my hand at Tokyo, this 19th day of January, 1946.
DOUGLAS MACARTHUR
General of the Army, United States ArmySupreme Commander for the Allied Powers

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Annex: Tokyo Charter

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Annex: Tokyo Charter

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INDEXA
abetment, 415
absenteeism, 51, 78
absolute compliance, theory of, 319
Act-of-State doctrine, 169, 258, 272, 274,
311
adversarial system, 403, 404, 405, 408
aggression, crime of, 19, 20, 21, 34, 39,
49, 59, 67, 72, 79, 90, 108, 120, 156,
161, 180, 181, 186, 201, 207, 213,
215, 217, 224, 227, 228, 229, 231,
234, 235, 254, 255, 257, 260, 263,
271, 272, 305, 322, 411, 413, 428, 430
Akayesu case, 419
Allied motives, 19, 25, 28, 56, 77, 109,
160, 179, 205, 352, 354
Allied powers, 22, 31, 38, 45, 58, 62, 88,
94, 149, 152, 167, 174, 178, 193, 198,
202, 224, 239, 270, 350, 354, 358,
368, 369, 385, 400, 427, 430, 432
American Bar Association, 287, 288
amnesty, 351
Appleman, John, 289
Araki, Sadao, 335, 361, 364, 365
armed conflict, 72, 91, 237, 238, 242, 309
Assembly of States Parties, 235, 403
Attack on Pearl Harbor, 19, 31, 32, 47, 51,
58, 77, 116, 139, 159, 188, 338
Auschwitz concentration camp, 432
Awaya, Kentarō, 18
Axis powers, 34, 35, 39, 41, 88, 379, 380,
383, 385, 393

Bbacteriological warfare, 75
Bagilishema case, 419
Bataan Death March, 81
Battle of Nanjing, 160
Battle of the Philippines, 160

Bemba case, 420, 421
Bernard, Henri, 57, 80, 87, 229, 276
biological warfare, 96Blaškić case, 419
Bowman, Virginia, 105, 113, 121, 125
Brunner, Lucille, 105, 113, 121

C
Cairo Declaration of 1943, 34
carceral system, 387, 389
Cassese, Antonio, 18Čelebići case, 419
Chalufour, Aline, 114
chargesconventional war crimes, 19, 21, 22, 23,
27, 28, 31, 32, 34, 35, 38, 41, 48, 52,
67, 68, 72, 88, 90, 92, 94, 104, 105,
156, 157, 161, 165, 171, 174, 177,
179, 180, 192, 193, 195, 197, 199,
227, 228, 231, 237, 238, 244, 268,
304, 305, 308, 310, 311, 313, 316, 317,
321, 324, 326, 329, 330, 331, 340,
341, 346, 428, 430, 433
crimes against humanity, 17, 21, 41, 48,
52, 67, 72, 90, 92, 104, 156, 157, 161,
180, 227, 238, 304, 305, 307, 308,
313, 324, 412, 413
crimes against peace, 41, 48, 51, 52, 59,
67, 72, 79, 81, 90, 92, 93, 94, 104,
156, 157, 161, 180, 193, 197, 198,
201, 206, 214, 217, 227, 231, 238,
252, 254, 259, 261, 269, 272, 304,
305, 308, 311, 313, 316, 317, 324, 326,
412, 413
CHIANG, Kaishek, 34, 266
Churchill, Winston, 33, 34, 36, 203
civil law system, 405, 407, 408, 410, 418
civilian internees, 168, 177, 180, 182, 186,
189, 197, 198, 239, 241, 244, 382
Class A war criminals, 336, 341, 344, 369,
370

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The Tokyo Tribunal: Perspectives on Law, History and Memory
Class B/C war criminals, 341, 342, 384,
392
clemency, 21, 25, 28, 349, 351, 353, 355,
356, 359, 361, 364, 368, 380, 389,
390
Cold War, 358, 364, 368, 371, 389, 411,
416, 428, 431
collective offending, 228, 229, 248
collective responsibility, 22
comfort women, 24, 99, 112, 431
common law system, 403, 404, 405, 407,
408, 412, 414, 417
Commonwealth of Nations, 65, 72, 73,285
communism, 352
commutation, 351
complicity charge, 38, 44, 92, 156, 161,
227, 228, 229, 232, 242, 411
Comyns-Carr, Arthur, 49, 51, 71, 73, 126
concentration camps, 42
conference interpreting, 147, 150consecutive interpretation, 133, 138, 140,
147, 148
conspiracy, 20, 26, 38, 40, 41, 51, 55, 92,
108, 156, 161, 181, 182, 227, 228,
229, 232, 242, 253, 254, 255, 259,
271, 272, 273, 411, 417
constitutional monarchy, 47
constructed temporality, 20, 225, 226, 228,
231, 241, 371
control over the crime theory, 416
Cramer, Myron, 276, 287
criminal conspiracy, doctrine of, 156, 161criminal negligence, 245
Cuban missile crisis, 431
culpability. principle of, 412, 413, 414
Cunningham, Owen, 287

DDandō, Shigemitsu, 21, 312, 315, 317,
324
death penalty, 38, 42, 43, 47, 55, 57, 70,
81, 195, 197, 198, 199, 311, 337, 339,
343, 349, 351, 358, 362
decolonization, 64
demilitarization, 330
democratization, 330, 391
detention camps, 374, 381, 393

deviant conduct, 319
Dohihara, Kenji, 183, 194, 197
Dostert, Léon, 147, 148E
Eichmann case, 416
Eisenhower, Dwight, 218
elements of crime, doctrine of, 315, 316
espionage, 381
ethnic cleansing, 26
European Convention on Human Rights,
405, 430
ex post facto legislation, 55, 57, 87, 92,
195, 205, 206, 208, 211, 213, 232, 233,
311, 321, 323, 430
excusatory defence, 317, 319, 320
extended participation, doctrine of, 230
extradition, 377, 381
extrajudicial killings, 203

F
fair trial, 141, 147, 203, 405, 422
Far Eastern Commission for Japan, 64
fascism, 391
Fischel, Elaine, 23, 105, 116, 128
Fite, Katherine, 114, 115
forced labour, 382, 393
France-Japan relations, 43, 70, 74

Ggender roles, 74, 75, 103, 104, 112, 113,
114, 116, 120, 127
Geneva Convention, 22, 55, 166, 169, 179,
185, 186, 188, 192, 196, 237, 239,
268, 376, 384
genocide, 67, 156
Germany, defeat of, 427
Glueck, Sheldon, 378, 379, 394
Great Fatherland War, 35

HHague Convention of 1907, 32, 55, 97,
166, 169, 179, 186, 192, 196, 237,
245

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IndexHata, Shunroku, 183, 194, 198, 259, 293,
361, 365
hearsay evidence, 404, 405
Higgins, John, 276
Hiranuma, Kiichirō, 261, 262, 427
Hiroshima, 57, 432
Hirota case, 310
Hirota, Kōki, 159, 170, 263, 269, 343, 427
Hitler, Adolf, 262, 270, 392, 427
Holocaust, 431
hors de combat, 237
humanitarian intervention, 237

Iimperialism, 391
incarceration, 356, 371, 374, 379, 387,
392, 396
inchoate crime, 412
India, partition of, 359
indictment, 51, 61, 79, 156, 161, 181, 182,
197, 205, 209, 227, 229, 232, 238,
308, 311
Count 44, 182
Count 54, 22, 165, 168, 227, 239, 243
Count 55, 22, 165, 168, 173, 239, 243,245
indirect co-perpetration, 418, 429
individual criminal responsibility, 17, 22,
26, 44, 53, 86, 156, 157, 161, 224,
227, 228, 229, 230, 231, 232, 235,
237, 243, 245, 248, 252, 255, 257,
273, 310, 314, 316, 342, 399, 403, 411,
422, 428
individual liberty, 313
insurgency, 237
intelligent soldier, 319
Inter-Allied Declaration, 32, 33
International Commission for Penal
Reconstruction and Development, 376
International Committee of the Red Cross,371, 376, 381, 385
International Convention for the
Suppression of Terrorist Bombings,
417
International Covenant on Civil andPolitical Rights, 405
International Criminal Court, 45, 63, 132,
201, 211, 215, 216, 217, 220, 225, 230,

235, 245, 247, 325, 326, 399, 411, 422,
430, 432
Chambers Practice Manual, 409
International Criminal Tribunal for
Rwanda, 44, 63, 100, 132, 155, 230,
238, 240, 399, 419, 428
International Criminal Tribunal for theformer Yugoslavia, 24, 44, 63, 96, 97,
100, 132, 150, 155, 223, 230, 238,
240, 244, 399, 406, 414, 419, 428international humanitarian law, 237, 240,
371
International Law Commission, 214, 215,
225, 235, 322
International Military Tribunal, 24, 31, 45,
54, 61, 63, 85, 87, 88, 89, 96, 103,
127, 131, 136, 144, 149, 156, 157,
179, 201, 206, 208, 209, 214, 217,
219, 220, 225, 228, 230, 232, 248,
255, 258, 275, 338, 350, 370, 388,
396, 399, 412, 427, 431, 433
charter, 41, 44, 50, 89, 92, 94, 105, 224,
231, 305, 310, 427
International Military Tribunal for the Far
East
Bill of Indictment, 161, 166
charter, 50, 55, 58, 64, 67, 72, 75, 78, 89,
90, 92, 95, 100, 106, 131, 141, 146,
157, 161, 180, 182, 205, 210, 224,
228, 231, 242, 255, 291, 304, 305,
308, 310, 311, 312, 316, 317, 324, 338,
400, 411, 418
dissenting opinions, 108, 252, 253, 254,
255, 263, 273, 277, 278, 286, 329
majority judgment, 81, 223, 251, 254,
257, 259, 260, 261, 263, 267, 269,
271, 272, 275, 286, 307, 311, 322, 323,
404, 412, 420
International Nuremberg Principles
Academy, ii, iii, 4, 18
International Prosecution Section, 71
interpretation
relay, 142, 144
simultaneous, 131, 143, 145, 147, 149
three-tier system, 139, 140, 151
trial-and-error method, 131, 133, 140,
147, 151
interpretational challenges, 131, 133, 134,
136, 137, 138, 140, 149, 151, 284

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The Tokyo Tribunal: Perspectives on Law, History and Memory
interraciality, 62, 128
Itagaki, Seishirō, 183, 193, 194, 197
Izokukai, Nippon, 345

J
Jackson, Eleanor, 105, 113, 122, 129
Jackson, Robert, 20, 38, 40, 50, 57, 59, 90,
179, 203, 207, 212, 218, 220
Japan
Constitution, 344
Diet, 260, 261, 264, 265, 335, 342, 345,
363
Supreme Court, 322
Japanese Instrument of Surrender, 45, 95,
106Japanese liaison bodies, 163, 172, 262
Japanese Occupation, 330, 340, 342, 347,
354, 355, 356
propaganda, 331, 347, 379, 392
Japanese revisionism, 19Japan-Manchukuo Protocol, 261, 264, 266,
269
joint criminal enterprise, 230, 414, 415
judicial ethics, 289, 296, 298
juridical person, 316
jus ad bellum, 411
jus contra bellum, 323
jus in bello, 323, 411

K
Kampala amendments, 217, 218
Keenan, Joseph, 48, 56, 57, 71, 72, 93, 94,
107, 181, 239, 292
Kellogg-Briand Pact of 1928, 54, 207,
210, 211, 218, 232, 234, 236, 256, 257,
270, 323
Kido, Kōichi, 262
Kiyose, Ichirō, 54, 292, 362
Krupp, Alfried, 369
Krupp, Gustav, 28

Llabour camps, 381, 387, 393
Lambert, Helen, 105, 113, 116, 125
Landsberg Prison, 28, 368, 370, 378, 389,
392

Language Arbitration Board, 21, 24, 53,
138, 150
League of Nations, 66, 322
legality. principle of, 225, 248, 313, 315,
316, 317, 321, 323, 324, 338, 403,
412, 421, 422
Leipzig travesty, 377
life imprisonment, 349, 364, 369, 378,
384, 385, 387
linguistic constraints, 40, 42, 53, 59, 63,
64, 74, 76, 77, 78, 132, 137, 140, 148
linkage-based approach, 243
Llewellyn, Grace, 23, 105, 113, 116, 119
London Agreement of 1945, 67, 157, 202,
217, 427
London Conference of 1945, 38, 39, 40,
90
London International Assembly, 376, 377
Lubanga case, 415

M
MacArthur, Douglas, 32, 46, 48, 51, 57,
58, 64, 92, 93, 95, 106, 107, 123, 133,
138, 144, 180, 202, 205, 218, 287,
295, 332, 400, 427, 431
Manchurian Incident, 159, 183, 188, 193,
197, 259, 261, 263, 268, 333, 338
Manila War Crimes Trial, 134, 151, 185
Mansfield, Alan, 188, 193
mass atrocities, 22, 39, 52, 53, 89, 90, 94,
97, 99, 105, 128, 167, 182, 224, 231,
238, 239, 243, 249, 307, 310, 332,
372, 375, 377, 379, 393, 428
mass deportations, 381
mass internment, 381
Matsui, Iwane, 183, 194, 198
McDougall, Stuart, 276, 285, 297
MEI, Ju’ao, 65, 81, 82, 276
Meiji Constitution, 160, 163
Meiji Era, 345
mens rea, 246, 247
militarism, 391
Minami, Jirō, 361, 364
Ministries case, 174
mitigation, 351
Mladić case, 223
modes of liability, 20, 22, 224, 229, 230,
242, 272, 310, 326, 410, 411, 412, 415

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Index
Moore, Lardner, 141, 143
Morgenthau, Hans, 36, 45
Moscow Declaration of 1943, 34, 37, 89,427
Mudacumura case, 245
multilateralism, 433
multilingualism, 62, 131, 140, 144, 147,
148, 151, 285
murder, 38, 47, 51, 52, 55, 161, 170, 181,
182, 185, 186, 189, 197, 209, 349, 411
Musema case, 419
Mutō, Akira, 159, 183, 193, 194, 197

N
Nagasaki, 57, 105, 432
National Offenders Prevention andRehabilitation Commission, 357, 361
Nazi, 33, 37, 38, 43, 55, 58, 67, 88, 90,
100, 108, 136, 149, 203, 228, 308,
318, 321, 349, 369, 374, 379, 381,
383, 387, 388, 392, 428, 429, 431
Nine Power Treaty, 260
Non-Prosecution of Emperor Hirohito, 32,
45, 46, 49, 51, 57, 59, 75, 80, 96, 107,
123, 160, 161, 229, 273, 427
norm-conforming conduct, 317, 320
Northcroft, Erima, 276, 278, 285, 297
nulla poena sine lege, 311, 321
nullum crimen sine lege, 206, 232, 233
Nuremberg Principles, i, 44OOka, Takazumi, 365
Ono, Seiichiro, 315, 317
Ōnuma, Yasuaki, 6
orientalism, 62

P
Pacific War, 65, 74, 81, 244, 264, 266,
267, 268, 338
Pal, Radhabinod, 18, 26, 57, 65, 77, 78,
87, 95, 108, 205, 210, 222, 229, 234,
252, 255, 257, 258, 259, 263, 267,
270, 272, 273, 277, 278, 280, 283,
286, 329
parole, 351, 354, 357, 361, 362, 364

Patrick, William, 65, 67, 76, 81, 276, 285,
295, 334
penal guilt, theory of, 21, 317, 318, 319
pluralism, 371, 373, 433
political independence, 235
Portia, 23, 120, 127
positivism, 321
Potsdam Declaration, 22, 45, 89, 168, 177,
321, 331
power politics, 386
presumption of innocence, 405
primus inter pares, 284
prison inmates, 370, 392
prisoners of war, 22, 74, 81, 89, 105, 135,
160, 165, 166, 172, 174, 177, 179,
182, 186, 189, 191, 192, 193, 196,
198, 321, 331, 342, 371, 375, 376,
380, 382, 384, 385, 387, 392
Pritchard, John, 63
procedural challenges, 285
procedural fairness, 403
procedural issues, 40, 42, 51, 53, 59, 72,
75, 77, 79, 87, 109, 131, 137, 224,
405, 407
public activism, 362, 375, 396

Q
Quebec Conference of 1944, 36

R
rape, 97
reckless disregard, 246, 247
Red Cross, 186
Red Cross Convention, 166
Renner, Bettie, 105, 113, 121, 125
repatriation, 357, 382
Röling, Bernard, 18, 23, 26, 57, 108, 111,
118, 252, 255, 257, 259, 263, 267, 272,
274, 276, 278, 280, 283, 286, 297,
329
Rome Statute, 45, 158, 215, 216, 230, 235,
238, 306, 311, 401, 405, 407, 408, 410,
411, 412, 413, 415, 419
Article 25(3)(b), 243, 245
Article 28, 243, 247
Roosevelt, Franklin, 33, 34, 36, 38, 48,
203

Nuremberg Academy Series No. 3 (2020) – page 447

The Tokyo Tribunal: Perspectives on Law, History and Memory
rule of law, 219, 221, 314, 325, 433

S
Saeki, Chihiro, 317
San Francisco Conference, 39
San Francisco Peace treaty, 352, 356, 359,
400
Sasakawa, Ryōichi, 28, 369, 370
satellite country, 39
Satō, Kenryō, 183, 193, 194
Sedgwick, James, 62, 76, 78, 82
self-defence, 54, 228, 234, 236, 256, 264,
272, 273
sentencing principles, 350, 351, 353, 354
sexual slavery, 76
sexual violence, 23, 96, 97, 100, 110, 240,
431
Shigemitsu, Mamoru, 170, 172, 174, 183,
193, 194, 198, 228, 246, 269, 337,
355, 362, 365
Shimada, Shigetarō, 271, 365
Shklar, Judith, 227, 248
Šljivančanin case, 244
sound popular conscience, 318
sovereignty, 96, 160, 233, 235, 356, 372,
380
Westphalian, 428
special camps, 381, 389
St. James Declaration, 179
Stalin, Joseph, 34, 37, 43, 90
State War Navy Coordinating Committee(US), 45
Stimson, Henry, 36
Strooker-Dantra, Coomee, 105, 113, 116,
123, 128
Sugamo Prison, 28, 335, 339, 340, 354,
356, 361, 365, 368, 369, 370, 378,
382, 387
summary executions, 37, 38, 97, 184
superior responsibility, 47, 157, 159, 162,
170, 184, 190, 198, 228, 231, 242,
245, 248, 310, 341, 343, 411, 418, 419,
421
Suzuki, Tadakatsu, 172

Takayanagi, Kenzō, 21, 54, 194, 320
technical challenges, 81
territorial integrity, 235
Terrorist Bombing Convention, 414
Thailand-Burma Railway Project, 190,
192, 193, 382
Tōgō, Shigenori, 183, 188, 193, 194
Tōjō, Hideki, 25, 47, 112, 160, 170, 183,
191, 192, 193, 194, 197, 260, 268,
271, 332, 344, 353, 362, 427
Tokyoberg, 17, 19
torture, 244, 248
totalitarianism, 433
transcript
publication, 58, 59, 88, 108transcultural justice, 25, 63transculturalism, 42, 53, 59, 63, 83, 87,
132, 284translation, 21, 40, 42, 53, 71, 76, 77, 81,
131, 134, 138, 143, 152, 284
Truman, Harry, 38, 40, 48, 107, 213, 217,
357

U
ultra-nationalism, 315
UN Charter, 235
United Nations, 25, 34, 37, 39, 88, 96,147, 217, 235, 325, 377, 384, 399,
400
United Nations Charter
Article 2(4), 235, 236
Article 51, 236
United Nations Office on Drugs andCrime, 417
United Nations War Crimes Commission,
33, 88, 231, 238, 291, 375, 376, 380,
388
use of force, 236

V
Versailles Treaty of 1919, 231
victors’ justice, 20, 32, 45, 87, 104, 109,
136, 148, 203, 252, 254, 263, 269,
276, 321, 401T
Tadić case, 414, 417

Nuremberg Academy Series No. 3 (2020) – page 448

Index313, 317, 318, 350, 360, 405, 427,
431

W
waging war, 26, 39, 56, 90, 108, 181, 201,
207, 215, 227, 231, 266, 271, 311, 323,
412
war commemoration, 330
war reparations, 230
Washington Naval Treaty, 264
Webb, William, 21, 24, 26, 27, 34, 57, 65,
71, 76, 77, 78, 81, 112, 119, 121, 125,
139, 140, 144, 146, 194, 196, 251,
254, 257, 259, 261, 263, 267, 272,
276, 280, 283, 285, 286, 287, 291,
298
draft judgment, 26, 27, 251, 254, 257,
263, 265, 270, 272, 277, 298
Williams, Carrington, 292, 294
World War I, 66, 376, 392, 428
World War II, 31, 86, 103, 115, 118, 127,
160, 162, 177, 198, 208, 226, 231,

Y
Yamashita case, 419
Yamashita Commission, 421
Yamashita, Tomoyuki, 47, 134, 160, 185,
385
Yasukuni Shrine, 27, 344, 347
Yokohama War Crimes Trial, 134, 135,
137, 151
Yokota, Kisaburō, 322, 337, 338, 347

Z
Zaryanov, Ivan, 65, 73, 81, 276
Zetterberg, Harriet, 114

Nuremberg Academy Series No. 3 (2020) – page 449

TOAEP TEAM
Editors
Antonio Angotti, Editor
Olympia Bekou, Editor
Mats Benestad, Editor
Morten Bergsmo, Editor-in-Chief
Alf Butenschøn Skre, Senior Executive Editor
Eleni Chaitidou, Editor
CHAN Icarus, Editor
CHEAH Wui Ling, Editor
FAN Yuwen, Editor
Manek Minhas, Editor
Gareth Richards, Senior Editor
Nikolaus Scheffel, Editor
SIN Ngok Shek, Editor
SONG Tianying, Editor
Moritz Thörner, Editor
ZHANG Yueyao, Editor

Editorial Assistants
Pauline Brosch
Marquise Lee Houle
Genevieve Zingg

Law of the Future Series Co-Editors
Dr. Alexander (Sam) Muller
Professor Larry Cata Backer
Professor Stavros Zouridis

Nuremberg Academy Series Editor
Dr. Viviane Dittrich, Deputy Director, International Nuremberg Principles Academy

Scientific Advisers
Professor Danesh Sarooshi, Principal Scientific Adviser for International Law
Professor Andreas Zimmermann, Principal Scientific Adviser for Public International Law
Professor Kai Ambos, Principal Scientific Adviser for International Criminal Law
Dr.h.c. Asbjørn Eide, Principal Scientific Adviser for International Human Rights Law

Editorial Board
Dr. Xabier Agirre, International Criminal Court
Dr. Claudia Angermaier, Austrian judiciary
Ms. Neela Badami, Narasappa, Doraswamy and Raja

Nuremberg Academy Series No. 3 (2020) – page 451

The Tokyo Tribunal: Perspectives on Law, History and Memory
Dr. Markus Benzing, Freshfields Bruckhaus Deringer, Frankfurt
Associate Professor Margaret deGuzman, Temple University
Dr. Cecilie Hellestveit, University of Oslo
Dr. Pablo Kalmanovitz, Centro de Investigación y Docencia Económicas, Mexico City
Dr. Sangkul Kim, Korea University
Professor Jann K. Kleffner, Swedish National Defence College
Professor Kjetil Mujezinović Larsen, University of Oslo
Professor Salím A. Nakhjavání, Institute for Security Studies, Pretoria
Professor Hector Olasolo, Universidad del Rosario
Ms. Maria Paula Saffon, DeJusticia
Dr. Torunn Salomonsen, Norwegian Ministry of JusticeProfessor Carsten Stahn, Leiden University
Professor Jo Stigen, University of Oslo
Dr. Philippa Webb, King’s College London
Dr. WEI Xiaohong, Renmin University of China

Advisory Board
Mr. Hirad Abtahi, International Criminal Court
Judge Silvana Arbia, former Registrar of the International Criminal Court
Professor Olympia Bekou, University of Nottingham
Mr. Gilbert Bitti, International Criminal Court
Research Professor J. Peter Burgess, PRIO
Former Judge Advocate General Arne Willy Dahl, Norway
Professor Emeritus Yoram Dinstein, Tel Aviv University
Professor Jon Elster, Columbia University and Collège de France
Mr. James A. Goldston, Open Society Institute Justice Initiative
Mr. Richard J. Goldstone, former Chief Prosecutor, ICTY
Judge Hanne Sophie Greve, Gulating Court of Appeal, formerly ECtHR
Dr. Fabricio Guariglia, International Criminal Court
Professor Franz Günthner, Ludwig-Maximilians-Universität
Mr. Wolfgang Kaleck, European Center for Constitutional and Human Rights
Former Judge Erkki Kourula, International Criminal Court
Professor Claus Kreß, Cologne University
Professor David Luban, Georgetown University
Mr. Juan E. Méndez, former President, ICTJ
Dr. Alexander Muller, Director, The Hague Institute for the Internationalisation of Law
Judge Erik Møse, European Court of Human Rights, former President, ICTR
Dr. Gro Nystuen, Norwegian Judge
Mr. William Pace, Convener, Coalition for the International Criminal Court
Ms. Jelena Pejić, International Committee of the Red Cross
Mr. Robert Petit, former International Co-Prosecutor, ECCC
Dr. Joseph Rikhof, Ottawa University, Canada
Maj-Gen (ret’d) Anthony P.V. Rogers, Cambridge University
Professor William A. Schabas, Middlesex University
Professor James Silk, Yale Law School
Associate Professor YANG Lijun, Chinese Academy of Social Science
Professor Marcos Zilli, University of Sao Paulo

Nuremberg Academy Series No. 3 (2020) – page 452

OTHER VOLUMES IN
THE NUREMBERG ACADEMY SERIES
Linda Carter and Jennifer Schense (editors):
Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals
Torkel Opsahl Academic EPublisher
Brussels, 2017
Nuremberg Academy Series No. 1 (2017)
ISBN: 978-82-8348-186-0
Tallyn Gray (editor):
Islam and International Criminal Law and JusticeTorkel Opsahl Academic EPublisher
Brussels, 2018
Nuremberg Academy Series No. 2 (2018)
ISBNs: 978-82-8348-188-4 (print) and 978-82-8348-189-1 (e-book)

All volumes are freely available online at http://www.toaep.org/nas/. For printed copies, see
http://www.toaep.org/about/distribution/. For reviews of earlier books in this Series in academic journals and yearbooks, see http://www.toaep.org/reviews/.
The International Nuremberg Principles Academy (Nuremberg Academy) is a non-profit
foundation dedicated to the advancement of international criminal law and human rights. It
was established by the Federal Republic of Germany, the Free State of Bavaria, and the City ofNuremberg in 2014. The activities and projects of the Academy are supported through contributions from the three founding entities and financially supported by the Federal Foreign Office of Germany.

Nuremberg Academy Series No. 3 (2020) – page 453

Nuremberg Academy Series No. 3 (2020):
The Tokyo Tribunal: Perspectives on Law, History and Memory
Viviane E. Dittrich, Kerstin von Lingen, Philipp Osten and Jolana Makraiová (editors)
The ‘International Military Tribunal for the Far East’ (IMTFE), held in Tokyo from May 1946
to November 1948, was a landmark event in the development of modern international
criminal law. The trial in Tokyo was a complex undertaking and international effort to holdindividuals accountable for core international crimes and delivering justice. The Tribunal
consisted of 11 judges and respective national prosecution teams from 11 countries, anda mixed Japanese–American team of defence lawyers. The IMTFE indicted 28 Japanese
defendants, amongst them former prime ministers, cabinet ministers, military leaders,and diplomats, based on a 55-count indictment pertaining to crimes against peace, war
crimes, and crimes against humanity. The judgment was not unanimous, with one majority judgment, two concurring opinions, and three dissenting opinions. The trial and theoutcome were the subject of significant controversy and the Tribunal’s files were subsequently shelved in the archives. While its counterpart in Europe, the ‘International Military
Tribunal’ (IMT) at Nuremberg, has been at the centre of public and scholarly interest, theTokyo Tribunal has more recently gained international scholarly attention.
This volume combines perspectives from law, history, and the social sciences to discuss
the legal, historical, political and cultural significance of the Tokyo Tribunal. The collection
is based on an international conference marking the 70th anniversary of the judgment of
the IMTFE, which was held in Nuremberg in 2018. The volume features reflections byeminent scholars and experts on the establishment and functioning of the Tribunal, procedural and substantive issues as well as receptions and repercussions of the trial.
ISBNs: 978-82-8348-137-2 (print) and 978-82-8348-138-9 (e-book).

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